text:
    ALLOWANCE OF ALIMONY ON GROUNDS SUBSEQUENTLY ARISING.
    Court of Appeals for Lucas County.
    Herma M. Cadwell v. Frank W. Cadwell.
    Decided, July 7, 1913.

      Divorce and Alimony — Refusal of Alimony to Wife in Another Jurisdiction — Conclusive Only Under Conditions then Existing.

    Where, in prior actions in another jurisdiction in this state, the courts have held in suits between the same parties for divorce and alimony, that the separation of the parties was caused by the fault of the wife, but that she had not been guilty of willful absence for three years, nor of gross neglect of duty, nor extreme cruelty, and have adjudged that the husband should make a fixed monthly payment for the support of the children, but refused an allowance of alimony to the wife, such adjudications are final and conclusive as to conditions then existing, but do not preclude an allowance of alimony on grounds subsequently arising.

      Marshall & Fraser and Berkeley Pearce, for plaintiff.

      Richard E. Lee, contra.
    Richards, J.; Kinkade, J.,and Chittenden, J., concur.
    Appeal from common pleas court.
   This is an action brought by the plaintiff against her husband for the purpose of securing an allowance of alimony. The parties to this action have had a great deal of litigation in the courts of Cuyahoga county over their marital troubles, two actions for divorce having 'been brought in that county by the husband and divorce refused in each case. The first of these actions resulted in an allowance of alimony to the wife, from which allowance the husband appealed to the circuit court, which latter court on a hearing of the ease, in the decree rendered December 16, 1911, refused the wife alimony but gave her the custody of the two children of the parties and ordered the husband to pay to her for the support of the children $30 on the first day of each month. The prayer for alimony was, by the circuit court, specifically denied. /

It appears from the evidence in this case that Mrs. Cadwell resided up to the time of her marriage to the defendant, which occurred on June 15, 1898, in this county and that after their marriage they resided in the city of Cleveland, which city had always been the home of the husband. In the year 1909 she left him, taking the two children, and came to live with her parents in Lucas county, and has continued to reside here from that time. Certain matters must be considered to have been adjudicated between these parties and not now open to further discussion or consideration. We must take it for granted as held by the circuit court in Cuyahoga county that the separation of the parties in the year 1909 was occasioned not because of habitual drunkenness of the husband as was claimed by the wife but by an ill-grounded jealousy on her part and that as held in the decision of that court the evidence was not such as required her to leave him permanently. In the second divorce case brought by the husband, after the decision of the circuit court to which reference has just been made, the common pleas court held in a decision rendered May 24,1913, that she had not been guilty of wilful absence from her husband for three years nor of gross neglect of duty or extreme cruelty towards him. These matters so adjudicated by the courts in that county will not be opened up for further examination by this court.

The plaintiff in her petition for alimony in this county avers that her husband has been guilty of gross neglect of duty in failing to provide for her since the decision rendered by the circuit court and since her offer to return and live with him and her ineffectual attempt to bring about a reconciliation between them. It is insisted by counsel for Mr. Cadwell that this court has no jurisdiction to allow alimony to the wife because of the decree rendered in the circuit court in Cuyahoga county. That court after clearly recognizing the distinction existing between alimony on the one hand and an allowance for the support of the children on the other, as already stated, specifically refused alimony under the facts then existing. Mrs. Cadwell was then claiming alimony by reason of the alleged habitual drunkenness of her husband, and the court found that the drunkenness was not of such frequency as to be habitual, and therefore and for that reason refused to allow her any alimony. Pier present claim is based upon occurrences since the date of that decision. It is not the law that the former decision is an adjudication that no cause for the allowance could thereafter arise. The allowance which ivas made by that court for the support of the children is in no sense of the word a provision for her by way of alimony.

We call attention to Pretzinger v. Pretzinger, 45 Ohio St., 452, 459, where the distinction is clearly pointed out by the Supreme Court. Indeed it was held by the Supreme Court in the case of Rogers v. Rogers, 51 Ohio St., 1, that an allowance for the maintenance of minor children was not appealable. While the law has always been in Ohio that the allowance of alimony is appealable, by act, 90 O. L., 186 (Section 8035, General Code), the right to appeal from the allowance for the maintenance of children was first granted. I only call attention to this decision and the latter statute to indicate the distinction between alimony and an allowance for the maintenance of children. Our Supreme Court in Fickel v. Granger, 83 Ohio St., 101, 106, says that "Alimony is an allowance for support, which is made upon considerations of equity and public policy. * * * It is based upon the obligation, * * * that the husband must support his wife.” We are then at liberty to determine the claim of the wife to alimony in this ease and render such decree as the facts may justify, unhampered by the refusal of the circuit court in Cuyahoga county to allow her alimony on the facts existing at the time of the decision in that court, in December, 1911.

The evidence tends to show that subsequent to said decision she, in good faith, sought a reconciliation with her husband and offered to return and live with him and resume their marital relations. The husband strenuously insists that such offer was not made in good faith but only for the purpose of enabling her to secure a portion of his property. When asked on the witness stand to state what would satisfy him that she was acting in good faith in making her offer, he was unable to state or at least failed to state what wmuld be sufficient.

We are not willing, to concede that his determination that she was acting from a mercenary motive and not in good faith is final. On the contrary, her motives are to be determined by the court in which her action is pending. If his arbitrary conclusion that her offer to return was not in good faith should be binding and should be persisted in by him, then the fact that she left him originally for an insufficient cause would always prevent her from obtaining that support and maintenance to which a wife is entitled.

It may be noted in passing that it appears from the evidence that the husband offered, before the trial in the Circuit Court of Cuyahoga County, to take the wife back to his home and expressed a willingness to become reconciled and that they should thereafter live together as husband and wife. She insists that this offer so made by the husband was not in good faith but for the purpose of preventing her obtaining an allowance of alimony in the ease then pending and she urges that his subsequent refusal to accept her offer to return is confirmation of her view that his own offer was not made in good faith.

The rule governing the rights of the parties under the circumstances existing in this case, seems to be clearly and concisely stated in 9 Am. & Eng. Enc. Law, 775:

“Where the parties have separated by consent .or one has left without justifiable cause, if one party seeks a reconciliation and offers to return, the party declining the offer is not entitled to relief but in law becomes a deserter.” See also cases cited on the same page.

.We find that from the time of her offer to return, made since' the circuit ■ court decision in Cuyahoga county, the defendant has been guilty of gross neglect of duty and that the plaintiff is entitled to an allowance of alimony for her support.

The evidence shows that the defendant is the owner of certain real estate in the city of Cleveland and described in the petition, having a rental value of $80 to $100 per month, and that he is in receipt of a salary of $80 per month. Pie is now paying to the plaintiff for the support of the children $30 per month which we assume wall be continued. We allow her as alimony for her own support the sum of $40 per month, payable $40 cash and a like payment on the first day of each month, and we adjudge the costs against him including an attorney’s fee to her counsel for services in this case in the sum of $100.

In view of the contention that her attempted reconciliation and offer to return has not been made in good faith, this court expressly retains control and jurisdiction over this case with the right to make such modification in the allowance of alimony as the subsequent conduct of the parties or changed conditions may render necessary.


source: Caselaw Access Project

license: Public Domain

text:
    DETERMINATION AS TO BENEFICIARY.
    Court of Appeals for Hamilton County.
    Clara L. Johnson v. Policemen’s Benevolent Association.

    Decided, August 6, 1913.

      Beneficial Insurance — Brothers of Policeman Designated as His Beneficiaries — Designation Invalidated by His Subsequent Marriage.

    Tlie designation by an unmarried member of a policemen’s benefit association incorporated under General. Code, 9427, of bis brothers as beneficiaries of a fund payable at his death by said association, is invalidated by his subsequent marriage; and death occurring after such marriage the fund should be paid to his widow.

      Johnson cG Levy, for plaintiff.

      George 11. Katt&nlwrn, contra.
    Swing, J.; O. B. Jones, J., and E. H. Jones, J., concur.
    Appeal from common pleas court.

      Reversing Johnson v. Policemen's Benefit Association, 13 N.P.(N. S.), 568.

   Clara L. Johnson is the widow of Clifford E. Johnson, who was a member of said benevolent association. Said association was incorporated in 1888 under the laws of this state, under old Section 3630, Revised Statutes (General Code, 9427), which is as f ollows:

“A company or organization may be organized'to transact tlie business of life or accident, or life and accident insurance on the assessment plan for the purpose of mutual protection and relief of its members, and 'for the payment of stipulated sums of money to families” or heirs of the deceased members of such company or association.

The constitution of said association provided:

“Article II — Object. See. 1. The object of this association shall be to provide assistance for the families or legal heirs of a deeeasedmember. ”

Article IY, Section 2, provided:

“The sum so paid shall be held as a death benefit fund to be paid to the family or whoever the next deceased member may have elected, immediately upon satisfactory evidence of such death having been furnished to the board of trustees.”

Under the provisions of the statute and of the constitution of this association there can be no question but that the death benefit provided would be payable to the widow, Clara L. Johnson, the deceased having left no children; but it is claimed that the widow is not entitled to this benefit by reason of the fact that the said Clifford E. Johnson had designated his brothers the beneficiaries of his claim. Prior to the marriage of Clifford E. and Clara L. Johnson this designation had been made by Clifford E. Johnson, so that the question is, whether or not the widow — notwithstanding the brothers had been designated — is entitled to the claim, or whether by reason of the designation the brothers are entitled to the fund.

If' Clifford E. Johnson had not married Clara L. Johnson there would be no question but that the designation of the brothers woiild be binding upon the association, and they would be entitled to the benefit because they would come under the provisions of the law and the constitution, but we are of the opinion that the purpose .of the lav/ and the purpose of the constitution of this association was primarily to raise a fund for the families of the deceased, and that it was not within the power of said Clifford E. Johnson to designate others than the members of his family as the beneficiaries of this fund. At the time of his death the family of Clifford E. Johnson consisted of himself and his wife, the brothers at that time were not members of his family within the meaning of the law, and therefore not being members of the family, his designation made at the time when it was proper became inoperative as against the provisions of the la.w and the provisions of the constitution of the society, and the court hold that the widow alone is entitled to the benefit provided by the association.


text:
    DAMAGES FOR WANTON TRESPASS.
    Circuit Court of Huron County.
    Mildred G. Houran v. Charles Whitney et al.

    Decided, October 5, 1912.

      Trespass — Finding of Not Guilty of Intentional Wrongdoing or Actual Malice Not Inconsistent toith a General Verdict for Plaintiff which Includes Punitive Damages.

    In an action to recover damages for an alleged wanton and malicious trespass on real estate, in which the jury returns a general verdict for the plaintiff, and assesses the actual damages and the punitive damages separately, and further states in answer to an interrogatory submitted, that it does not find the defendants were guilty of intentional wrongdoing or actual malice, the plaintiff is entitled to a judgment for the full amount of the general verdict, inasmuch as such special finding does not exclude a conclusion that the defendants acted wantonly, or in reckless disregard of the rights of the plaintiff, and it is not, therefore, irreconcilable with the general verdict.

      C. P. & R. D. Wickham, for plaintiff in error.

      A. V. Andrews, contra.
    Richards, J.; Kinkade, J., concurs; Wildman, J., not sitting.
    Error to common pleas court.

      Affirmed without opinion, Whitney v. Houran, 90 Ohio State, -.

   In the court of common pleas, Mildred G. Houran brought an action against the defendants to recover damages for an alleged wrongful, wanton and malicious trespass committed upon her premises. Issues were made up between the parties and the ease tried to a jury, resulting in a general verdict in -favor of the plaintiff for $210.

The trial court, at the request of the defendants, submitted to the jury certain special interrogatories to be answered by them in the event they returned a general verdict. The jury response to the first interrogatory answered that they returned $10 as actual damages caused by the trespass; and in answer to the second interrogatory that they returned the sum of $200 by way of punitive damages.

The fourth interrogatory submitted reads as follows:

“4. Do you find that any of the defendants on the evening of March 16, 1908, were guilty of intentional wrongdoing or actual malice toward the plaintiff 1 Answer: No.”

After the rendition of the verdict, the case came on to be heard in the trial court upon the motion of the plaintiff for a judgment in her favor on the general verdict for the sum of $210 and costs, and the motion of the defendants that the court render a judgment on the general verdict, as modified by the special findings and the answers of the jury, in the sum of $10 only. The court found and adjudged that the general verdict to the extent of $200 was inconsistent with the special findings and irreconcilable therewith, and rendered judgment for $10 only, thus eliminating the amount of $200, allowed as punitive damages.

The plaintiff insists in this court that the answers to the interrogatories are not so irreconcilably inconsistent with the general verdict as to justify the action of the trial court in refusing to enter a judgment for $210 and in entering a judgment for $10 only.

It will be noted that by the answer of the jury to interrogatory No. 4, they find only that the defendants were not moved by “intentional wrong-doing or actual malice towards the plaintiff.” It is insisted by counsel for the defendants that this answer precludes the allowance of any punitive or exemplary damages.

Many fine distinctions have been drawn between actual malice, express malice, and malice in fact on the one hand, and implied malice, imputed malice, constructive malice and malice in law on the other hand, but into this fruitful field of discussion it will not be necessary to enter.

A careful examination of the question raised by the record in this case leads us to the conclusion that interrogatory No. 4 is too restricted in its language to forbid the allowance of exemplary damages.

During the argument, reference was made to Mauk v. Brundage, 68 Ohio St., 89, but the Supreme Court was passing only upon the phrase “express malice” in that case, and was not considering whether exemplary damages could be allowed in cases of the kind under consideration upon a finding of any circumstances other than express malice.

Reference was also made during the argument to the case of Young v. Telephone & Telegraph Co., an unreported case tried in the.court of common pleas of this county, affirmed by this court and affirmed by the Supreme Court, without report, in American Tel. & Tel. Co. v. Young, 78 Ohio St., 399. An examination of the record in that case, which was one of alleged wanton and malicious trespass upon real estate, shows that the charge of the court authorized the jury to award punitive or exemplary damages, if they found the acts were done “wantonly or maliciously or with a reckless disregard of plaintiff’s rights.” While it may be true that neither the circuit court nor the Supreme Court passed upon that language, Ave believe it to be a correct statement of the rule under which a jury would be justified in alloAA'ing exemplary damages in a case like the one now before the court. It seems to be in accord with 1 Southerland, Damages, 716, where the author says:

“There is much authority for allowing damages beyond compensation for torts Avhenever a case shows a wanton invasion of the plaintiff’s rights or any circumstances of outrage or insult; whenever there has been oppression or vindictiveness on the part of the wrongdoer; whenever there is a willful malice or reckless toi’t to person or property.”

The Century Dictionary defines “wanton” as characterized by extreme recklessness; also recklessly disregardful of rights or consequences.

The scope of this interrogatory is not broad enough to cover a case in which the jury find that although the defendants may not have been moved by actual malice, yet' they may have acted wantonly and with a reckless disregard of the rights of the plaintiff. It appears to the court, therefore, that interrogatory No. 4 and the response thereto of the jury are not so irreconcilably in conflict with the general verdict as to have justified the court in refusing to enter a judgment for the plaintiff for the amount of the general verdict. Well established practice requires that it must appear that the special findings are in a legal sense irreconcilable with the general verdict and that this conflict must be clear before a court will be justified in disregarding the general verdict. Davis v. Turner, 69 Ohio St., 101, 102.

The judgment of the court of common pleas will be reversed and, proceeding to render the judgment which that court should have rendered, judgment will be entered in favor of the plaintiff upon the general verdict. • -


text:
    PROOF OF GUILT UNDER AN INDICTMENT FOR ROBBERY.
    Circuit Court of Summit County.
    John McLaughlin v. State of Ohio.
    Decided, April, 1905.

      Evidence — Trials—Statements of Third Parties in Presence of Accused; When Admissible — Record of Whole Case Before Reviewing Court —Immaterial Evidence Admissible to Rebut Like Evidence — Evidence Known to Party Not Newly-Discovered.

    1. Statements of third persons to the accused, charging him with crime and his conduct or replies in response thereto, are admissible in evidence.
    2. Where a motion for a new trial is overruled and no exceptions taken thereto and a second motion for a new trial made on the ground of newly-discovered evidence is also overruled, to which exceptions are taken and the case taken on error to the circuit court, the record of the entire case is before the court for review.
    3. Where immaterial evidence has been admitted on behalf of one party similar evidence then becomes admissible on the part of the other party to explain or rebut it.
    4. A new trial will not be granted on the ground of newly-discovered evidence, simply because the counsel for the accused did not know of the existence of the evidence, when it was possible for the defendant to communicate it to him at any time previous to the trial, and he failed to do so.
    Winch, J.; Hale, J., and Marvin, J., concur.
   Plaintiff; in error was arrested on May 15th, 1903, charged with having participated with two others in robbing one Robert Spinner. He was incarcerated in the county jail and remained there until his trial at the September term of the Common Pleas Court of Summit County, and on October 28th, 1903, was found guilty by the verdict of a jury. October 29th, 1903, he filed a motion for a new trial, which on November 4, 1903, was overruled by the court, and he was thereupon sentenced to two years in the penitentiary. No exceptions to the overruling of this motion were taken, but on November 5th another motion for a new trial on the ground of newly-discovered evidence was filed, accompanied by many affidavits setting forth, in substance, that at the time the robbery was committed the accused was so addicted to and under the influence of intoxicants and drugs that he was not accountable for what he did, and that this was unknown at the time of the trial and could not, with reasonable diligence, have been discovered.

It appears from these affidavits that the young man was of good family, was a member of the bar of New York, and had been assistant corporation counsel for New York City, sustaining a good reputation; that on Christmas day, 1903, he met with an accident, was taken to a hospital, was given narcotics to allay his pain, became used to taking morphine, gradually became a slave to the habit, indulging in drinking whiskey and absinthe to excess, descended the social and moral scale until he became a tramp, wandering about the country, associating with low and vicious characters, suffered from his excesses to such an extent that his moral and intellectual faculties were blunted, became a wreck; in fact, frequently being in prison, sometimes at his own request that he might be restrained from himself and sobered up. He made known none of these facts to counsel assigned to defend him, nor did any of his family know that he was charged with crime until after he had been convicted thereof.

It. may fairly be supposed that the numerous affidavits to sustain the last motion for a new trial were procured in an effort by the parents of this young man to save him and themselves from the disgrace of his commitment to the penitentiary.

This- last motion for a new trial was overruled, exceptions taken, and bill of exceptions prepared and filed with a petition in error in this court.

The prosecuting attorney claims that no exceptions having been taken to the overruling of the first motion for a new trial, nothing is before us for review except the ruling of the trial judge upon the last motion for a new trial, but we hold that the entire case is before us for examination of such rulings as the trial judge made that were excepted to by the accused at the trial. These matters will be examined in their order.

First. It is claimed that certain declarations of the prosecuting witness, Spinner, made in the presence of the accused, should have been excluded. It appears that McLaughlin and one of his companions were ai'rested in the evening shortly after the commission of the crime alleged, and taken by two officers, Goodenberger and Benson, to the boarding house of the 'prosecuting witness, Spinner, for identification by him. The questions and answers objected to referred to conversation of the accused at that time, narrated by Goodenbergcr, and are as follows:

‘‘Q. State what was said? A. We asked Spinner in effect, probably not in the same words, whether these were the'parties that robbed him, and he pointed at McLaughlin and said he was one, and he looked at Macklin, Macklin was leaning up against a showcase there, and first he said he didn’t look tall enough, and after Macklin straightened up and turned around so he could get a good look at him, he said he was one of the other men.
“Q. Do yon remember any other conversation that occurred in the presence of McLaughlin either between you and McLaughlin or Spinner and McLaughlin in that bouse? A. Yes, sir.
“Q. You may relate it? A. Just as soon as we got in the house McLaughlin said, ‘I do remember meeting a colored man on some street over here and asking him for some tobacco.’ ”

It appears that without objection Spinner himself, when on the stand, testified to the same conversation as follows:

“Q. Now, Robert, what is the fact as to whether or not you identified McLaughlin there-as one of the fellows? A. As soon as I seen him I knowed him. I said, ‘You are the fellow that got my tobacco.’ ‘Yes,’ he says, ‘I did get the tobacco off a colored fellow.’ I says, ‘You are the man that robbed me.’ ‘No,’ he says, ‘I never robbed you. I got tobacco from a little colored fellow, but never robbed you.’ ”

Officer Benson’s testimony on the subject is as follows:

“Q. Tell what was done, what took place? A. Goodenberger told the lady right over there, asked her, ‘Is Mr. Spinner here?” She says.- ‘I guess he went to bed.’
‘‘Q. Go ahead. A She went up and got him and he come down. As soon as he come inside the door, as soon as he looked at McLaughlin, ‘You are the one,’ he said, ‘That helped to rob me, ’ he says.
‘‘Q. Who did he say that to ? A. McLaughlin.”

It thus appears that the accused at this time made a statement tending to show his connection with the crime. His acknowledgment that he had met Spinner about the time and place claimed by the latter, and asked him for his tobacco, was significant, tended to identify him as one of the robbers and was proper evidence for the consideration of the jury.

The rule that statements of third persons to the accused, charging him with the crime, and his conduct or replies in response thereto, are admissible, was laid down by this court in the case of Moran v. State, 11 C. C., 464, and affirmed by the Supreme Court. The opinion of the court by Judge Hale sets forth our views of this matter, and we believe fully applies to this case.

We, therefore, hold that there was no error in the admission of the testimony objected to.

Second, exception is taken to the testimony of Detective Doerler in which he gave a conversation with the accused a few days before his arrest, in which the detective claimed he ordered 'McLaughlin out of town. This testimony was incompetent, but it appears from the bill of exceptions that upon cross-examination of the defendant he .was asked if Doerler had not ordered him out of town, and defendant, without waiting for the court to rule upon the question, answered “No.” On re-direct examination the defendant testified to his conversation with Doerler and gave his version of it. In rebuttal the state called Doerler, who gave his recollection of the conversation, to which the defendant excepted.

We think that under these circumstances Doerler’s testimony was admissible.

It has frequently been held that where inadmissible or immaterial or irrelevant evidence has been admitted in behalf of one party, similar evidence may be admitted to rebut it, and where part of an act or declaration is given in evidence by one party, the other party is entitled to inquire into the whole. 20 Am. Digest, 450, and cases cited.

It is said by Jones in the first volume of his Law of Evidence, Section 169, that the reason for this rule is, that it would be manifestly unjust, if one party is permitted to introduce irrelevant testimony, to prevent the other party from rebutting or explaining it. So it seems to us, though some courts have held that the introduction of immaterial evidence to meet, immaterial evidence is within the discretion of the trial judge. Treat v. Curtis, 124 Mass., 348; Fushbush v. Goodwin, 25 N. C., 425.

In either view of the case there was no error in the admission of the testimony of Doerler, for which this ease should bé reversed.

It remains to consider the claim of plaintiff in error that the trial court erred in overruling the motion for a new trial, which was based upon the ground that there was newly-discovered evidence. The character of this so-called newly-discovered' evidence has been given. The motion is based upon the fifth clause of Section 7350, Revised Statutes, which provides that a new trial may be granted for “newly-discovered evidence, material for the defendant, which he could not with reasonable diligence have discovered and produced at the trial.”

Whether this evidence, if it had been submitted at the trial, would probably have changed the result is not necessary for us to determine, for we are of the opinion that the evidence set forth in the affidavits accompanying the motion does not come within the provision of the statute that it shall be “newly-discovered” and such that defendant “could not, with reasonable diligence, have discovered and produced at the trial.”

That the accused just before he was arrested had been drinking to excess, and had been twice locked up for intoxication that he might sober up, was testified to by himself at the trial.

But it is claimed that the use of absinthe and morphine was not known to his counsel at the time of the trial. This may be so. It is also claimed that the particular characteristics of the use of such liquor and drug is to make their user and habitue secretive as to their use, deceitful,- careless of results, forgetful and irresponsible. Such may be the case.

That counsel for the accused did not know of this evidence does not make it newly-discovered, if at any time previous to the trial, defendant, who must be presumed to know the most about it, was able to communicate it to him. Isaacs v. People, 138 Ill., 538; Pace v. State, 63 Ga., 159; Russell v. Oliver, 78 Tex., 11.

But was the defendant at the time of the trial able to communicate it to him ?

It must be remembered that the accused was arrested May 15th, 1903, but not tried until October 28th, 1903, over five months later. During all that time he was in jail and must have materially recovered from any bad effects resulting from the use of intoxicants and drugs. There is no evidence that such was not the ease. The affidavits all refer to his condition before and at the time he was arrested, and not to his condition at the time of the trial. lie was an attorney and knew the value of such evidence.

lie himself testified in the police court the morning after the robbery occurred, and again at his trial before the common pleas court. It appears from the counter-affidavits on the motion that he sat at the trial table with his counsel and made suggestions to him as to the manner of conducting his defense. lie argued his own cause to the jury. From these circumstances we must conclude that he was abundantly able to communicate all of the facts as to his previous habit and condition to his counsel, and offer them in evidence. That he did not do so was his own neglect, and upon this he can not base his right to a new trial.

The motion will be denied if the mover has been guilty of laches. Moore v. Coates, 35 O. S., 177.

It was held in the case of Nesbit v. People, 19 Col., 441, that:

‘ ‘ A motion fór a new trial, on a charge of murder, for newly-discovered evidence, will not be granted where it consists of the professional opinion as to the mental condition of the defendant, and no efforts were shown to obtain it before trial.”

In the case of Cooper v. State, 122 Ind., 377, the court says:

“Where the defendant in a trial for murder testifies as to all the circumstances of the homicide, which occurred more than three years before, and seeks to justify it on the sole ground of self-defense, a new trial will not be granted on the ground of newty-diseovered testimony, to the effect that defendant had been drinking to excess for several months before the homicide, and was on the verge of delirium tremens. ’ ’

The affidavits filed in this cause make a case very similar to the case of People v. Hovey, 30 Hun., 354, from which I quote as follows:

“The defendant was tried and convicted of murder in the first degree, for shooting his sister-in-law on April 20, 1892. There was present at the time of the shooting of the deceased, the defendant and his wife. The defendant was examined in his own behalf, and testified that the shooting was accidental, stating in detail how it occurred and what he did and said on that day.
“It appeared by the testimony of several of the witnesses, and to some extent by the testimony of the defendant himself, that he had been drinking for some days before the commission of the crime, and that- he was intoxicated at the time of its con-mission. The conviction was affirmed by the general term on March 22, and by the court of appeals on JuJy 5th, 1883.
“On July 11th, 1883, the defendant moved for a new trial upon the ground of newly-discovered evidence. The affidavits which were made by public officers attached to the police force and prison force of New York, tended to show that the defendant was arrested on April 15th, 18.82, and committed to prison for three days for intoxication; that at the time of his arrést and while in prison he talked wildly and acted violently, and so that it was necessary to confine his hands, and that at the time of his discharge he was not fully recovered from the effects of the liquor; that upon the day after his arrest for the homicide, the city physician visited him and found him in a highly nervous and excited condition, the result of the excessive use of alcohol; that he complained of being unable to sleep or control himself, which symptoms resulted from the abuse of alcohol and the deprivation of sedatives he had been in the habit of taking; that he was under treatment for these troubles for some two weeks; that in the opinion of the said physician at the time of such examination the mind of the prisoner was in such a condition that he was oblivious of his actions during the week preceding said examination. These facts were not communicated to the defendant’s counsel until the latter part of June, 1883.
“Held: That it was not probable that the evidence, if received, would have changed the verdict.
“That the evidence had not been discovered since the trial, within the meaning of the said action, inasmuch as the. facts of his arrest, confinement and sickness, must have been known to the defendant, although he might not have known the exact condition, physically and mentally, in which he was then, and that it was his duty to have made these fact's known to his counsel, if he deemed them important; that the only fact newly discovered was that it might have been of some importance to himself, if evidence of these facts ha.d been produced on the trial.
“That as the condition and mental operations of the defendant were questions necessarily involved upon the trial, the evidence was cumulative.
“That the failure of the defendant to produce the evidence upon the trial was due to his want of diligence.”

"In this state it has been held by the circuit court of the fifth circuit (11 C. C., 18),that:

“Motions for new trial, based upon newly-discovered evidence are usually addressed largely to the discretion of the trial court, and that court having passed upon the case in all its aspects, a reviewing court will not interfere with the action of the trial court, especially if it sees no ground for such interference. ’ ’

We think this well states the law, and adopt it. Believing that the trial court property overruled said motion, we find no error in its so doing.

Our attention has been called to the fact that the plaintiff in error for about a year had been imprisoned in the county jail, no part of which'time counts as part of his sentence of two years in the penitentiary.

It has also been suggested that the young man has been rehabilitated, has overcome his bad habits, recovered from the use of drugs and stimulants and been sufficiently punished ; that confinement in the penitentiary will not further reform him nor benefit him or society; that such confinement may have the opposite effect. While feeling the weight of these suggestions, we know of no jurisdiction this court has to reduce the sentence, and suggest that such representations should rather be made to the pardoning power, in which we have no part.

Judgment affirmed.


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    PROPER PLACE FOR MAKING TENDER OF PAYMENT.
    Circuit Court of Lorain County.
    Fred F. Thomas v. John Watt and Mary Watt.
    Decided, May 8, 1905.

      Tender of Payment Mvst Ve Made at Residence of Payee:

    Where no agreement as to place of payment is made, a tender, to be legal, must be made at the residence of the payee; and the fact that the obligor, through a misunderstanding, was at some other place for the purpose, will not excuse the failure to mahe a tender at the proper place.

      F. F. Thomas and Clayton Chapman, for plaintiff.

      E. H. & H. C. Johnson,, contra.
    Winch, J. - Marvin, J., and Henry, J., concur.
    Heard on appeal,
   In this ease we are asked to enforce the performance of a verbal contract between the parties for the sale of a farm in Lorain county, owned by the defendants.

There is no dispute as to the making of the contract and its terms. Plaintiff introduced evidence as to certain acts of part performance of the contract on his part, which he claims takes it out of the operation of the statutes of frauds, and while what he did is father insignificant and is explained by defendants as referable to permission given by them to the doing of certain things which should be at plaintiff’s risk, if the sale was not consummated — we are inclined to say that plaintiff is right upon this proposition.

There remains but one other thing or proposition in the case, and that is the question of tender. The contract provided that plaintiff should pay to defendants the consideration agreed upon by February 1st, 1903. That day came upon Sunday. The evidence shows that upon the Saturday before that day plaintiff went to the farm of defendants having with him a draft for $1,500 drawn by the American Trust Co. of Cleveland upon the Colonial Trust Co. of New York, properly endorsed and made payable to plaintiff’s order. He also had with him a deed properly drawn up to be signed by the defendants. Mr. Watt was away and he saw Mrs. Watt, showed her the draft and told her to go with her husband before one Crandall, a notary public or justice of the peace, and have the deed executed and plaintiff could go there and have the money with him. She said “alright. ’ ’

The next day, Sunday, plaintiff went to defendant’s farm and saw Mr. Watt, or “the Captain” as he is called. As to what then occurred plaintiff testified in substance as follows:

“I told the Captain 1 had a New York draft (perhaps plaintiff showed it to him) the Captain said he didn’t believe I had any money; he wanted money the bank would take; I said we can go to New London and get the money; he said no; I want to go to the bank at AYellington; what the Wellington bank will take I will take; 1 said it makes no difference; you can have the money in pennies, if you want to. T will go to Wellington tomorrow. ’ ’

The witness Wheeler testifies that on said Sunday he overheard talk between plaintiff and the Captain; plaintiff started away and halloed back, “I will meet you at Wellington^ and you can have pennies if you want to, and that Watt said all he wanted was the currency.'

The defendant, Captain Watt, testifies to the conversation on Sunday as follows:

“Plaintiff said he had a draft there, slapping his breast pocket; I said I wanted the money and would take what the Wellington bank would take; he said lie would get the money at New London and be back Monday; said I could have pennies if I wanted them; I said I would take anything that was legal tender.”

It appears in evidence that on Monday plaintiff went to Wellington with his draft; went to both banks there; waited a reasonable time for defendants to tender them the money, and they never came. Captain Watt stayed at home most of Monday, waited for plaintiff, but he never came with the money.

Plaintiff has made no other tender of money than as above stated.

We take it that the law implies that, in a case like this, where no place for tender is agreed upon, it must be made to the defendant at his home or residence. Where the parties agree upon another place for tender, it must be made at the place agrees upon.

We find that no sufficient tender was ever made to defendants at their home or residence. Did they agree upon another place for tender? We are of the opinion that the evidence fails to show that their minds met upon that proposition. Doubtless plaintiff thought the tender was to be made at Wellington, and he so testifies; there is nothing in the evidence to show that defendants so understood and agreed. We think they understood that plaintiff was going to have his draft cashed either at New London or Wellington, and come back with the money to their home on Monday. The pai’ties doubtless misunderstood each other; such being the case it was the plaintiff’s duty to make a tender on the farm. lie could have gone there when he returned from Wellington, as defendant’s farm adjoined plaintiff’s. Why-plaintiff never afterward made any tender to defendants at their home, he does not explain. If he was misled into going to Wellington on Monday by any statements of defendants, the law would have given him a reasonable time thereafter to -make a tender at their home. This he has absolutely neglected and refused to do, although defendants testify that they were willing to receive the money.

For failure to prove a tender or any circumstances excusing one, the petition is dismissed.


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    DATE FROM WHICH TIME RUNS FOR FILING A PETITION IN ERROR.
    Circuit Court of Lorain County.
    Mrs. W. F. McLean v. Cornelia Johnson et al.
    Decided, May 8, 1905.

      Error — Reversal of a Ji^dgment Obtained in Justice Court and Retaining Case for Trial Not a Final Order.

    Where a case is taken upon error from the court of a justice of the peace to the court of common pleas, the judgment of the justice reversed and the case retained for trial and at a later term dismissed for want of prosecution, the four months within which a petition in error may he filed in the circuit court dates from the dismissal of the case and not from the reversal of the judgment of the justice, as that was not a final order.
    Winch, J.; Marvin, J., and Henry, J., concur.
   July 23, 1903, plaintiff brought her action against the defendant before a justice of the peace, and in her bill of particulars claimed judgment for “the sum of $42.20 amount due including the interest for medical services rendered and medicines furnished to defendant by the late Dr. W. F. McLean, and which account is now the property of plaintiff?” .

The attorney for plaintiff verified said bill of particulars by his affidavit. Summons was issued returnable July 28th, 1903, and defendants duly served. On the latter date, as appears from, the transcript of the justice, defendants failed to appear; plaintiff was present by her attorney and the justice made the following entry:

“No counter-claims or off-sets presented. By reason of the sworn affidavit of plaintiff’s attorney attached to her bill of particulars, that said account is due and payable, it is considered and adjugded by me that said plaintiff recover from said defendants the sum of $42.20, together with the costs of this case as of record herein taxed. ’ ’

August 28,1903, said defendants filed their petition in error in. the common pleas court, praying for the reversal of said judgment.

Plaintiff was granted leave to file an answer to said petition in error in which she set up certain facts with regard to the merits of the ease, and as to what was done in the justice court, but of course the facts set forth in the transcript from the justice are the only facts which the common pleas court could consider, as no bill of exceptions was taken from the justice court.

March 7, 1904, the common pleas court reversed the judgment of the justice of the peace and retained the case for trial. To this judgment and order the defendant in error in said court took no exception.

December 15, 1904, no pleadings having been filed in common pleas court by either party, the action being duly called for trial, was dismissed for want of prosecution at the costs of said Mrs. W. F. McLean, for which judgment was rendered against her. No exception was taken to this judgment or order.

Thereafter on December 31, 1904, said Mrs. W. F. McLean filed her petition in error in this court, to reverse the judgment of the common pleas court.

Defendants in error objected to hearing this case on the ground that the petition in error was filed too late in this court.

That would be true were the four months within which a petition must be filed to date from the judgment of reversal, March 7, 1904. But that judgment was not a final order upon which proceedings in error could be predicated. Kelly v. Hunter, 12 O., 216; Lungworth v. Sturges, 6 O. S., 143; Railway Co. v. Barley, 39 O. S., 170; Bradley v. Walker, 13 C. C., 530.

The reason for this rule is that the common pleas court having reversed the judgment of the justice of the peace, under Section 6733, Revised Statutes, was obliged to retain the case “for trial and final judgment, as in cases of appeal” so that the ease was still pending in the common pleas court until such trial and final judgment.

The petition in error in this court is filed in time, if the four month’s limitation is dated from the judgment of dismissal.

It appears that the common pleas court reversed the justice court because the latter rendered judgment upon a verified bill of particulars, without further proof, notwithstanding said bill of particulars failed to contain a full statement of the items constituting the cause of action, as provided in Section 6562, Revised Statutes; which reads:

“If either party shall set forth in his bill of particulars, counter-claims or set-off, a full statement of the items constituting his cause of action, or defense, and if the same shall be verified by the affidavit of the pai’ty, his agent or attorney, the party appearing having complied, with the provisions of this section shall be entitled to a judgment, without further proof, in all eases where the opposing party fails to- appear and set up his defense to such cause of action, counter-claim or set-off in accordance with the provisions of this section.”

We are inclined to think that there was a technical violation of this statute by the justice and that the transcript shows it, but whether the common pleas court erred in reversing the justice court for that reason can not be reviewed in this court, for, as shown, it was not a final order, and no exception was taken to said judgment of reversal.

Upon said reversal the defendant in error below had a right to file a petition in the common pleas court and try out her case there; this she neglected to do for three terms, and thereupon the common pleas court dismissed the case for want of prosecution. That there was error in so doing does not appear from the transcript of said court, and as no bill of exceptions was taken to said judgment, we are unable to say that it was erroneous. Miller v. Simms, 1 C. S. C. R., 485.

Judgment affirmed.


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    REPLEVIN OF SAW LOGS.
    Circuit Court of Lorain County.
    William Case v. George Kortz.
    Decided, May 8, 1905.

      Tender — When Tender or Excuse for Not Tendering Purchase Price, a Question for the Jury.

    Where standing timber was sold at a certain price per M., the logs to be measured and paid for by check before being removed from the land; a partial payment made, and after the trees were cut but before they .were measured or paid for tire land was sold and the purchaser of the trees notified by the vendor of the land that the sale was made subject to his rights in the trees, and by the purchaser of the land that if he wanted the trees he must remove them within three days and pay for them in cash; in an action of replevin following the refusal of the purchaser of the land to allow the purchaser of the trees to come upon the land to measure them, the question for the jury is not as to the ownership of the trees but whether or not three days was a reasonable time in which to allow their removal and whether or not the act of the purchaser of the land excused the purchaser of the trees from making legal tender.

      I. E. Hershey and L. Z. Tanney, for plaintiff.

      H. O. Redington, contra.
    Winch, J.; Marvin, J., and Henry, J., concur.
   ' Defendant in error brought his action before a justice of the peace to replevin from plaintiff in error four white oak saw logs.

The case being appealed to the common pleas court and petition therein filed, the defendant in that court filed his second amended answer in which he alleged the following facts:

“And for a second and further answer, this defendant says that on or about the---day of November, A. D. 1901, he purehased'of one Mary A. Stewart a certain ]ot of timber, among which is the timber described in plaintiff’s petition; that said timber was standing at the time of said purchase, and that the agreement and terms of sale of said timber from Mary A. Stewart to this, defendant was as follows, to-wit: that said timber was to be cut and scaled by this defendant and paid for by cheek, before the same was removed from the premises of the said Mary A. Stewart; that he was to pay for the same at the rate of sixteen dollars ($16) per thousand feet; that the same was to be scaled by this defendant and some lumberman from Cleveland.
“Defendant further says that at said time He paid to the said Mary A Stewart, the sum of five dollars ($5) to apply on said contract; that thereafter, to-wit, on or about the - day of May, A. D. 1902, he went upon said premises and cut said timber, especially the timber mentioned or described in plaintiff’s petition, that during the year of 1902, the season was such that it was impossible for him to remove said timber from said premises on account of the wet weather, or to do anything with the same.
“Defendant further says that as soon as the weather permitted, which was on or about the 23d of December, A. D. 1902, he went upon said premises and commenced to cut into logs and to scale timber among which was the timber described in plaintiff’s petition; that before he finished cutting and scaling all of said timber, the plaintiff in this action ordered him from said premises and drove him from the same, and refused to allow him to take possession of said timber and said that he was the owner thereof.”

Then follows an allegation of tender to a Mr. Carter, brother of Mary Stewart, alleged to be her agent, and also that the defendant was ready and willing to pay for the logs.

The reply filed to this amended answer has some admissions, and it is important to read them:

“The plaintiff George Kortz, for his reply to the second amended answer of the defendant filed in this case says, he does not deny that during the month of December, A. D. 1902, ’the said defendant entered upon the lands where the timber and logs described in plaintiff’s petition were located, and that said defendant then commenced to cut said oak trees into logs, and this plaintiff admits that he refused to allow said defendant to finish cutting said trees- or timber into logs and that he then ordered the said defendant to leave said premises, and the plaintiff was then the owner of said premises and- told the defendant so, and the owner of all said timber and logs, and the plaintiff admits that he then refused to give defendant possession of said timber and logs.
“The plaintiff further denies each and every other statement and averment in said second amended answer contained except such statements and averments as are admissions of the statements and averiments contained in plaintiff’s petition filed therein.”

Upon these pleadings the case was tried to a jury, and upon the trial the following written communications were introduced in evidence:

“N. Royalton, 0., November 8, 1902.
“Wm. Case,
“West Yiew, Ohio.
“Dear Sir: About one year ago you bought of Mrs. Mary Stewart some timber, to be immediately cut, scaled and paid for by check. You cut some and it lays on the ground where it fell, unsealed and unpaid. Unless she hears from you in a substantial way within ten days she will proceed to sell the timber to other parties. This is to so notify you.
‘ ‘ Respectfully yours,
“A. B. Knox,
“Justice of the Peace.
“N. Royalton, 0., Dec. 4, 1902.
“Wm. Case,
West Yiew, Ohio.
“Dear Sir: Mr. Carter refuses to accept your check which I enclose herewith and return to you. The place was sold last night to Mr. Kortz, as soon as Mr. Carter reached home, subject to whatever claims you may have on the trees you bought of Mrs. Stewart, and hereafter you will have to'do business with Mr. Kortz and pay him for the timber.
“Respectfully,
“A. B. Knox.
“Parma, Ohio, December 17th, 3902.
“Wm. Case,
“Dear Sir: I have bought Mrs. Stewart’s place in Strongville. If you want them oak trees you must come and see me inside of three days or else they will be cut up into logs. If you want them you must bring the money, or check for them seven trees cut down if sealed satisfactory.
“George Kortz.”

We think the evidence clearly shows that Carter acted as agent for Mrs. Stewart, at least up to the time Knox wrote his second letter, and that Knox was duly authorized by both Mrs. Stewart and her brother, Mr. Carter, to send both of said letters.

The court held that Carter’s agency for Mrs.. Stewart ceased on or before December 4th, 1902, and that Knox’s letter of that date was sufficient notice thereof to Case, and in so holding we think there was no error.

From the admissions in the pleadings and from the evidence it further appears that neither Mrs. Stewart or Knox ever tendered back to Case the five dollars which -he paid her when the agreement regarding the trees was first made, and that Case never tendered to Mrs. Stewart or to Kortz, or to any person representing either of them the amount of money which he agreed to pay for the logs.

Notwithstanding Case’s delays in carrying out the agreement for the purchase of the logs, it is apparent that the contract with him was never rescinded, because his five dollars ivas never returned to him. The option of the vendor, Mrs. Stewart, under such circumstances, to resell on notice, or to retain title, holding the vendee for any deficit, we also think was never exercised.

Mrs. Stewart sold the land upon which the logs were lying to Kortz, but she did not sell him the logs and.credit Case Avith the consideration for them on his contract. The letter of December 4, 1902 says:

“The place was sold last night to Mr. Kortz subject to whatever claim you may have on the trees you, bought of Mrs. Stewart.”

In legal effect said agreement Avas an assignment of her contract to Kortz so that he took Mrs. SteAA'art’s place and assumed and agreed to carry out the contract with Case. Such being the case, Ave think that Case Avas relieved from making tender to Mrs. Stewart after December 4th, 1902, but as the evidence in the case clearly shows that the purchase price of the logs was to be paid as soon as the logs were cut and scaled, it is manifest that Case was not entitled to possession of the logs until he paid Kortz or tendered to Kortz; whether such tender was excused by Kortz driving Case off the land, when he went there to scale the timber, depends upon the reasonableness of his notice of December 17, in which he said, ‘ ‘ If you want them oak trees you must come and see me inside of three days or else they will be cut into logs.” Kortz had a right to set a reasonable time within which Case should scale and pay for the logs, and if Case did not act, to dispose of the trees as he saw fit, crediting their value on what was realized for them on Case’s contract. The reasonableness of the time set, together with the reasonableness of the time within which Case acted, if the three days were not reasonable, should have been left to the jury under proper instructions.

This was not clearly done, and the question of tender was not touched upon by the court, notwithstanding defendant made a request as follows:

‘ ‘ On general principle, whenever an act of one party, to whom another is bound to tender money, services or goods, indicates clearly that the tender, if made, would not be accepted, the other party is excused 'from technical performance of his agreement. The law never requires a vain thing to be done. ’ ’

The troublesomeness with the charge is, that it deals entirely with the question of ownership of the logs, rather than with the right of possession thereof.

Granting that title to the logs passed to the vendee when the trees were severed- from the land, confessedly the vendor was to retain possession of them until the vendee paid or offered to pay for them.

The only questions of fact which were in dispute and for the jury to determine were, whether Case had paid for the logs, tendered payment or been excused from making tender. If none of these facts were established, Case was not entitled to the possession of the logs, and had no right to' take them away. If they were established, the plaintiff must fail in his ease.

The jury should have been restricted in its inquiry to these simple propositions. That it was not, was largely the fault of counsel for plaintiff in error, whose theory of the case seems to depend upon the question of title, and whose requests to charge, while in the main correct as elementary or abstract principles of law, had little reference to the real issues in the case, and no pertinent application to the facts as conceded or shown in the evidence.'

We find no prejudicial error in rulings on evidence and hold that defendant’s objections based upon the fact that plaintiff in replevin filed no new affidavit in the common pleas court, are not well taken; but for error in the charge in the respect mentioned, the judgment is reversed.


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    ERROR. NOT CURED BY REMITTITUR.
    Circuit Court of Cuyahoga County.
    New York, Chicago & St. Louis Railway Company v. Cleveland, Painesville & Eastern Railroad Company.
    Decided, January 16, 1905.

      Damages — When Remittitur Does Not Cure Error.

    Where plaintiff has recovered a verdict in an action brought for two distinct injuries, for one of which defendant was not liable in damages, and the evidence as to the extent of the other injury was conflicting; a remittitur even though it be for a greater amount than that claimed for the injury for which defendant was not liable, will not cure the error in allowing that branch of the case to be considered by the jury, where it does not affirmatively appear that the remittitur was allowed for that reason.

      John H. Clarke, for plaintiff in error.

      Ford, Snyder & Henry, contra.
    Marvin, J. (orally) ; Winch, J., and Hale, J., concur.
   The Cleveland, Painesville & Eastern Railroad Company, brought suit against the plaintiff in error, the New York, Chicago & St. Louis Railway Company, to recover for property destroyed in an accident whereby some cars of the plaintiff in error (some loaded cars upon a switch) ran against a trestle and injured the powerhouse and other property of the Cleveland, Painesville & Eastern Railroad Company. This occurred on the 31st of October, 1901. There was some coal on the cars which was consigned to the defendant in error. It was to be free on board cars at their powerhouse. It never reached their powerhouse. There is no dispute but that the loss on account of this coal was $150. The court allowed evidence as to the value of this coal and charged the jury that they might find for the value of the coal as well as for the other injuries to the property of the Cleveland, Painesville & Eastern Company.

It is contended on the part of the defendant below that this coal never was the property of the Painesville Company; was never delivered to it. The evidence shows that they had never paid for it. It clearly was not yet delivered to the Painesville Company; it was not the property of the Painesville Company, and recovery for that should not have been allowed to the Painesville Company.

As to the extent of the injury to the property of the Painesville Company (the powerhouse) the testimony is conflicting. It is placed by some of the witnesses at an amount very much more than the recovery and by some at considerable less, but, as has been said, the court instructed the jury that they might allow for the value of the coal. The recovery was for $1,008.88. On motion for a new trial, the court determined that the verdict must be set aside unless the plaintiff below should remit $308.88, which was done and judgment entered for $700.

It is urged that as the amount remitted was much more than the value of the coal, the judgment as entered should be permitted to stand. That would be true if we could mathematically determine that the court' had included in the remittitur the $150. If we knew that was included, we would then affirm the judgment because the evidence is uncertain as to the extent of the injury to the powerhouse and might justify a verdict as to the amount entered as a judgment. For aught we know, the court may have concluded that the injury amounted to only $550. The result is that we are not prepared to say that the judgment as entered was right, and unless the defendant in error shall still remit the $150, the value of the coal, we shall have to reverse the judgment. If that amount is remitted, the judgment will be affirmed. We think probably the court may have included that in the remittitur, but if so, we do not know it.


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    LIABILITY OF STOCKHOLDERS FOR DEBTS INCURRED BY THE CORPORATION.
    Circuit Court of Cuyahoga County.''
    William Scofield v. The Excelsior Oil Company et al.

    Decided, January 16, 1905.

      Pleading and Practice — Stockholders Liability — Appeal Brings Questions on Pleadings to the Appellate Court — Subsequent Facts May be Set Forth in Supplemental Petition — Stockholders Liable for Debts Incurred Before Transfer or Assignment of Stock.

    1. An appeal brings up questions on the pleadings, in the same manner as such questions would be raised had the appellate court had original jurisdiction.
    2. Facts necessary to make a cause of action, which have occurred since the filing of an original petition, may be set forth in a supplemental petition.
    3. Under Section 3258, Revised Statutes, stockholders are liable for such debts as the corporation has incurred before the transfer of the stock and such liability is not limited to such debts as have matured at that time.

      Henderson & Quail, for plaintiff.

      Goulder, Holding & Masten, contra.
    Marvin, J.; Winch, J., concurs.

      Affirmed without opinion, Cobb v. Scofield, et al, 74 Ohio State, 513,

   This case comes to this court by appeal from the judgment of the court of the common pleas.

The questions to be determined relate to whether the defendant, Lester A. Cobb, is liable in any sum to the plaintiff..

Scofield originally brought his suit claiming to be a creditor of the Excelsior Oil Company, which is*a corporation, setting out an indebtedness of the corporation to him; that the corporation was without assets and was insolvent; that the defendant Cobb was a stockholder in the corporation at the time the indebtedness was created; that he transferred his stock to Charles E. French, who thereafter transferred the same to J. B. ITuston. Said French is insolvent, and said Huston died insolvent in 1894. The prayer was for a recovery against Cobb for a proportionate share of such indebtedness determined by the amount of stock held by him when the indebtedness was created.

Upon a trial had in this court it was held upon the evidence that the corporation was indebted to plain tiff in the sum of $149,016.67, with interest from the 9th day of January, 1900, and such holding was made upon the evidence of original indebtedness and transfers of claims made to him.

'Upon proceedings’in error in the Supreme Court, it was there held that the allegations of the petition were not sufficient to entitle the plaintiff to relief against the stockholders, in that no allegation was made that a recovery had been obtained against the company; that upon execution being issued no property was found out of which the same could be satisfied, and the case was remanded to the court of common pleas, where it originated, for further proceedings.

Thereafter said plaintiff brought suit in the Court of Common Pleas of Cuyahoga County against said oil company for said indebtedness. Appearance of the company was entered by its attorneys, and upon hearing, the plaintiff recovered judgment against the company for the sum of: $98,497.20, together with costs, said judgment bearing interest from the 22d day of September, 1902.

On leave granted, plaintiff, after obtaining such judgment, filed a supplemental petition in this action, setting up the recovery of this judgment; that execution had been issued thereon; that no property of the company was found whereon to levy; and that no part of said judgment has been paid.

Motion was made in the court of common pleas and renewed here, to strike this supplemental petition from the files. This motion was overruled at the time of the hearing, the court reserving the final determination of what should be done therewith until after the case had been heard. Such hearing has been had, and it becomes our duty now to determine whether such motion should have been sustained by this court.

On the part of the plaintiff it is urged that this question is not properly here; that the question was one of discretion with the court of common pleas and its determination with the said court must be final unless such discretion was abused. In support of this reliance is had upon Section 5225, Revised Statutes, which provides that, when a case is appealed from the court of common pleas to the circuit court, the trial shall be conducted in the latter court “in the same manner as in the common pleas court and upon the same pleadings, unless amendments are ordered or permitted by the circuit court. ’ ’

This proposition of the plaintiff is not sound. The construction sought to be given to this section is against repeated holdings of the courts. It has been held many times by this court that an appeal brings up questions -upon the pleadings, in the same manner as such questions would be raised had this court had original jurisdiction of the case. To hold otherwise would be to hold that, if a demurrer to a petition or answer has been filed but not sustained, but which clearly ought to have been sustained, still, upon an appeal the court could not pass upon that question of pleading. We hold otherwise. It has been repeatedly said that the appeal brings tap the demurrer and all questions raised on demurrer. We hold, therefore, that the motion to strike off this pleading is properly here.

In support of this motion it is urged, that since the Supreme Court has held that the facts as they existed at the time the suit was brought were not such as to entitle the plaintiff to recover at all, that he can not, by the creation of subsequent- facts, be permitted to bring such facts into his original action and proceed thereon. We think this contention is not sound.

The supplemental petition in this case only added to the allegations of the original petition that judgment had been recovered by plaintiff against the company on the indebtedness set out in the original petition, and failure to obtain any property upon execution with'which to satisfy said judgment. It made no claim for an indebtedness not claimed in the original petition, nor did it make any new allegation as to the actual insolvency of the company, but only set out the facts occurring after the bringing of the suit, which the law requires in a proceeding of this kind as evidence of such insolvency before suit can be maintained against the stockholders.

In the case of Gibbon, Admr., v. Doughterty et al, 10 O. S., 365, is is held that where in aid of execution on a judgment the judgment creditor brings an action to subject to the satisfaction of his judgment the debt of a debtor of the judgment debtor, and such debtor of the judgment debtor is served in the action, the fact that after such service the judgment upon which the action is brought is set aside at a subsequent term for irregularity and a new judgment is entered, may be set up in a supplemental petition and proceed with the action

In the opinion, on pages 371 and 372, this language is used by the court:

“The subject-matter of the suit and the parties in the action, as well as the object of the suit, all continued to be before the court. The substantial abject was the payment of the debt of the judgment debtor; and the reversal of that judgment for an irregularity was in no sense an intimation of its payment, or a relinquishment of the claim of the plaintiff to enforce its payment in the manner and by the means expressed in the petition. The law, which never requires a vain thing, would not, therefore, require the plaintiff, after having the irregularity in the same judgment cured by a new judgment expressing the same debt, incur the delay and expense of dismissing the suit and commencing de novo when the entire proceeding could be perfected by a supplemental petition. And our practice, as regulated by the code, shows still less favor to objections merely technical. A supplemental petition was always regarded as only ancillary to the original petition. Its office is to bring before the court some event which has happened subsequently to the commencement of the suit. The plaintiff does not thereby withdraw any allegation in his original petition not inconsistent with the averments in the supplemental petition. If, therefore, the plaintiff had even neglected to make, as he has done in this ease, special reference in his supplemental petition to his original petition, he would still have been entitled to the full benefit of the same. ’ ’

1 Nash Pleading & Practice, page 288, and following, discusses Ibis question and cites authorities, and quotations in brief of counsel for plaintiff are made from them, and we think the holding as enunciated here is in full accord with these authorities.

We therefore overrule the motion to strike the supplemental petition from the files.

A great amount of evidence was introduced on the question of whether the company was indebted to the plaintiff. The transactions of the parties from the beginning of their business relations up to the time of the bringing of the suit was gone into. From this evidence we find that the oil company was, at a time when Cobb was a stockholder, indebted to the plaintiff; that the subsequent holders of the stock which had formerly been owned by Cobb were insolvent; that all of the solvent stockholders, other than Cobb, have paid their proportionate share of such indebtedness and that the liability of Cobb must depend upon whether the plaintiff is still a creditor of the corporation. A judgment has been obtained, as hereinbefore stated, by the plaintiff against the corporation, for $98,497.20, together with costs, and drawing interest from September 22, 1902. Except by contributions .of stockholders, nothing has been paid upon this judgment. The judgment is still in full force and, as we hold, establishes the fact of the indebtedness to the amount of such judgment. Without going into a discussion of the facts as to any indebtedness other than such as is shown by this judgment, we only say that viewing such evidence as we now view it, and considering the fact that plaintiff brought suit for only the amount recovered, we find that the amount of the indebtedness of the company to the plaintiff is fixed by said judgment. If it is said that this is not consistent with the finding of this court in the former case, the only answer we have to make is that the court as now constituted would not find upon the facts as we found before.

It was suggested in argument that the defendant Cobb was not liable to respond in this action because of the wording of Section 3258, Revised Statutes, as amended April 29, 1902. The section as amended reads:

“The stockholders of a corporation who are the holders of its shares at a time when its debts and liabilities are enforcible against them, shall be deemed and held liable, equally and rat-ably * * * and no stockholder, who shall transfer his stock in good faith, and such transfer is made on the books of the company, or on the back of the certificate of stock, properly witnessed or tendered for transfer on the books of the company prior to the time when such debts and liabilities are so enforcible, shall be held to pay any portion thereof.”

Before the amendment the section read:

“The stockholders of a corporation which may be hereafter formed and such stockholders as are now liable under former statutes, shall be deemed and held liable,” etc.

Under the statute before the amendment the holding of the Supreme Court was that the liability of the stockholder attaches at the time the debt is created, and is not discharged by the subsequent transfer of the stock. Brown v. Hitchcock, 36 O. S., 687.

In the case Judge White in the opinion discusses at considerable length the nature of the stockholders ’ liability, quoting at considerable length from the decisions of other courts with approval, where it is held that the liability is in the nature of a contract made by the stockholder when he becomes such. Among such quotations is the following from Corning v. McCullough, 1 Comstock, 47-54:

“It is virtually and in effect a liability upon a contract and the mutual agreement of the parties.”

Also from Yager v. Cleveland, 36 Mo., 476:

“It is a debt under the statute, due from the stockholder to the creditor, springing out of and co-existent with the contract between the corporation and the creditor. It is clear that no act of the stockholder without the consent of the creditor, can exonerate him from the liability thus named.”

In Hawthorne v. Calif, 69 U. S., 10, it is said in the syllabus:

“A statute repealing a former statute, which made the stock of the stockholders in a chartered company liable to the corporation’s debts, is, as respects creditors of the corporation, existing at the time of the repeal, a law impairing the obligation of contracts, and void.”

If, then, the amended section is construed to mean that the stockholder is liable only for such debts as have matured and upon which suits could be at once brought before the stock was transferred, it would be void as obnoxious to Section 16, Article VIII of the Constitution of the state, which reads:

“No * * * law impairing the validity of contracts shall ever be made.”

We think, however, it was not the intention of the Legislature by this amendment to restrict the liability of the stockholders to those debts which were due and collectible before the stock-was assigned, but only to such as are incurred while the stock is held by such stockholder, and are enforeible when they become due, against the corporation; hence the liability of defendant Cobb is in no wise, affected by this amendment of the statute.

We reach the conclusion, therefore, that the plaintiff is entitled to the rights of a creditor to the amount of his judgment; that Cobb is liable to him as a stockholder to the amount of his pro rata share of the stock held at the time the debt was contracted. This is forty-two seventeen-hundredths of the entire judgment. Decree will- be entered accordingly.

This is an opinion of the majority of the court only. Judge líale does not concur.


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    HEARING DENIED TO A DISMISSED SCHOOL JANITOR.
    Court of Appeals for Hamilton County.
    State, ex rel John L. Bloom, v. Board of Education of Cincinnati.
    Decided, May 10, 1914.

      Mandamus — School Janitor Fails to Appear When Cited by the Board to Answer to Charges — Estopped Thereby from Being Granted Belief in Court.

    Mandamus does not lie upon the petition of a school janitor-engineer to require the board of education to prefer charges against him and give him an opportunity to be heard, where specific charges were theretofore preferred against him and a date set for the hearing which he ignored, whereupon he was notified that his services would be no longer required.

      J. B. Denies and JS. Scott King, for plaintiff in error.

      Alfred Bethnan, City Solicitor, coiitra.
    Jones, O. B., J.; Swing, J., and Jones, E. H., J., concur.
    Error to common pleas court.
   Relator was a janitor-engineer of Woodward High School and as such received from the board of education, of Cincinnati the sum of $6,999 per year out of which sum he was required to pay for his help and to furnish certain material, netting said relator an average of $100 per month.

By a letter from the chief engineer, June 17, 1911, he was notified that 'his services would not be required by the board of education after June 24, 1911. He demanded to know the charges against him and that he be given a hearing. On July 3, 1911, the board of education passed the following resolution:

“Be it Resolved, That there exists a cause relating to the suitableness and capacity of John L. Bloom to perform his duties as engineer-janitor of Woodward High School which is sufficient to justiffy his removal in this, to-wit: that the said John L. Bloom has violated the rules governing the janitor service of the Cincinnati public schools in that—
“First, he has been insolent to teachers, the principal and to his superiors; and
“Second, he has used intoxicating liquor while on duty; and
“Third, he has been inefficient in his care of the said building.
“Be it Further Resolved, That the clerk is hereby directed to send a copy of this resolution to the said John L. Bloom and another copy thereof to the civil service commissioners.
“Be it Further Resolved, That the said John L. Bloom be given a reasonable opportunity to be heard in his own behalf, upon the said charges. ’ ’

A copy of this resolution was sent to the relator and another copy to the civil service commission of the city of Cincinnati. Said commission fixed July 17, 1911, for hearing said matter and so notified the relator.

Instead of presenting himself for such hearing before the civil service commission at that date or attending the meeting of the board of education and demanding a hearing by it, the relator brought this preceding below wherein he sought by mandamus to require the board of education to prefer charges against him and give him an opportunity to be heard before said board and after said hearing to determine the said charges and if sustained to certify same to the civil service commission.

The writ of mandamus was properly denied. The resolution of the board of education as passed preferred specific charges and offered him reasonable opportunity to be heard in his own behalf and the record fails to show that he availed himself of such opportunity. It seems unnecessary for him to seek by mandamus to obtain that which he had already been afforded. It appears from the record in this case that his position with the board of education was not that of an employee coming within the terms of the General Code but was in the nature of a contract relation. Lehigh Coal & Nav. Co. v. Railway, 29 N. J. Eq., 252; Rogers v. Railway, 31 S. C., 220.

Judgment affirmed.


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    REFUSAL TO ENJOIN ERECTION OF A DRY CLEANING PLANT.
    Circuit Court of Cuyahoga County.
    Ada Adams and Emma A. Britton v. Henry Muellaire and Prosper Irving
    Decided, January, 1905.

      Nuisances — A Dry Cleaning Plant Not Necessarily a Nuisance.

    A plant to be used for dry cleaning and dyeing garments may be so constructed that it will not he ycr se a nuisance to adjoining property owners, and where the evidence shows that a plant constructed in that manner is contemplated, its erection will not be enjoined.

      Jas. A. Ford and Cushing & Clark, for plaintiffs.

      C. J. Neal and J. C. Hutchins, contra.
    Marvin, J.;. Hale, J.,and Winch, J., concur.
   ,The plaintiff, Ada Adams, is the owner of a parcel of real estate in the city of Cleveland, Cuyahoga county, Ohio, bounded westerly by Hayward street, having a frontage of 102 feet 4% inches on said street and a depth of about 107 feet.

The plaintiff, Emma A. Britton, owns a parcel of land immediately south of said Adams property and having a frontage on Hayward street of 55 feet and a depth the same as that of the property of the plaintiff, Adams.

On the property owned by these plaintiffs there is a block of six dwelling-houses, the two most southerly of said houses being the property of, and upon the lands of said Britton, and the four more northerly of said houses being the property of, and upon the lands of said plaintiff, Adams. These are good and substantial brick houses except that the Hayward street front is of stone and the wall of the most southerly of these houses is of stone and is next to Sibley street.

The defendants, who are partners doing business under the firm name of H. Muellaire & Co., have recently purchased a parcel of land bounded on the south by Sibley street and on the west by the east line of the premises of the plaintiff.

The defendants carry on what is known as a dry cleaning and dyeing establishment, and propose and intend to erect buildings upon their said land and furnish said buildings with machinery and appliances for the carrying on of said business extensively.

In the conduct of said business the defendants use and will use upon their said premises gasoline in large quantities. They intend to carry on a business which will require the keeping upon said premises of several hundred gallons of gasoline all the time.

At the time this action was brought it was the intention of the defendants to erect and construct their said buildings and appurtenances and place therein and use machinery and devices, upon plans which the evidence shows would be attended with danger from explosions and fire in such wise as to greatly endanger the property of the plaintiffs and as would also cause offensive odors from such gasoline to pass from said premises to the houses of the plaintiffs to such an extent as to greatly discommode the occupants of such houses.

The relief sought by the plaintiffs is an injunction restraining the defendants from storing upon their said premises “gasoline or any similar volatile and inflammable product or petroleum and from using any such substance upon said premises; from allowing odors therefrom to escape or from other substance giving forth into the surrounding air offensive odors; from conducting the business of dry cleaning upon said premises; from conducting the business of dyeing upon said premises; and from erecting upon said premises any building designed for the purpose of conducting therein the business of dry cleaning or the business of dyeing.”

The evidence shows the business contemplated by the defendants consists largely in the cleaning and dyeing of wearing apparel and other similar goods; that in such cleaning large quantities of gasoline are used; that the gasoline as used produces vapor in large quantities, which vapor under certain conditions is very inflammable and is explosive and that it produces offensive odors.

If it were the purpose of the defendants to construct their buildings and appurtenances and conduct the business under the plans which they intended to follow at the time this action was begun, we should have no hesitation in granting an injunction against such construction and carrying on of the business; but the evidence clearly shows that the defendants now propose to erect buildings with devices and appliances materially different from those intended at the time of the bringing of the suit. Plans have been submitted to us and we have had the testimony of experts, which lead us to the conclusion that the business of dry cleaning and dyeing, to the extent that these defendants propose to carry the same on and for which they propose to erect their buildings and supply their appliances, may be so conducted as to practically relieve the neighborhood from offensive smells emanating from the business and so as to reduce the dangers from fire and explosions so completely as that the business would not be such as to constitute a nuisance which could be enjoined by the .court.

The evidence further shows that the defendants have employed an educated chemist and practical man under whose directions they are to put in their machinery and appliances.

We can not say, as the evidence now stands before us, that the construction of the buildings and the furnishing of the appliances and the carrying on of the business as is now proposed by the defendants will result in annoyance by smells or endanger by fires or explosions so as to constitute a nuisance, and that being so, we must deny the injunction prayed for.

It does not follow from this that when the buildings of the defendants are constructed and their appliances introduced that they may not turn out to be such as that the court should enjoin their use for the purpose intended, nor does it follow that the plaintiffs may not be entitled to an injunction from the carrying on of the business as the defendants may undertake to carry it on. We hold, only, that the evidence before us does not satisfy us that what the defendants contemplate doing will constitute a nuisance entitling the plaintiffs now to an injunction.

Finding however, as we do, that when this suit was begun the defendants did contemplate the' construction of buildings and appliances which would have been dangerous and offensive in their operation, the costs of this proceeding should be assessed against the defendants. The judgment, therefore, is that the petition of the plaintiffs is dismissed at the costs of the defendants.


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    INSOLVENCY OF CORPORATION PROVED BY TAKING A DEFAULT JUDGMENT.
    Circuit Court of Cuyahoga County.
    Wm. C. Scofield v. The Excelsior Oil Company et al.

    Decided, January 25, 1905.

      Judgments — Failure to Notify Stockholders of an Insolvent Corporation of the Institution of a Suit Against it Foes Not Amount to Fraud and Collusion.

    Where in an action to enforce stockholders’ liability a judgment for the plaintiff has been reversed and the case remanded from the Supreme Court for the sole reason that no insolvency of the corporation had been shown, and while pending in the common pleas court, the plaintiff obtains a default judgment against the corporation upon which execution is issued for the purpose of establishing the insolvency of the corporation in the stockholders’ liability suit, such judgment is not obtained by fraud or collusion and is not in violation of any rights of the stockholders, even though- they were not notified of the suit.

      Henderson & Quail, for plaintiff.

      Ooulder, Holding Hasten, contra.
    Marvin, J.; Hale, J., and Winch, J., concur.

       Affirmed without opinion, Cobb v. Scofield et al, 74 Ohio State, 513.

   The defendant, Lester A. Cobb, lias filed his motion for a new trial in this case, which has been argued to us with earnestness and ability by his counsel and in such wise as to-show that counsel feel great confidence in the position that the judgment of the court is wrong. The matters urged in support of the motion, though not all touched upon in the opinion, were all carefully considered by the court before the judgment was announced and the members of the court who concurred in that judgment are still of the opinion that the judgment is right.

The point upon which the court has found the greatest difficulty and because of which one member of the court does not concur in the judgment is upon the question of whether the judgment obtained by the plaintiff against the oil company in another action, during the pendency of this suit, is conclusive upon the defendant Cobb. That judgment was obtained without any service being obtained upon Cobb and without his having notice of the suit. If that judgment was obtained by the fraud of the plaintiff or by collusion between him and the oil company or those representing the oil company, it is not conclusive as against Cobb.

The averments of the answer of Cobb to the supplemental petition in reference to the obtaining of such judgment are in part as follows:

“Plaintiff as the owner of all the stock of said company and defendant, George F. Scofield, purposely and intentionally retrained and omitted to file any answer or make any defense in said cause, and caused and permitted a default judgment to be taken in said action in the sum of $98,497.21 in furtherance of the collusion and fraud aforesaid; that neither this defendant or his attorneys were given notice of the bringing of said action, and they had no knowledge thereof or of the judgment in said case until after the filing of the amended and supplemental petition herein in February, 1903, when the term of court at which said judgment was rendered had terminated; that said notice was withheld from them in furtherance of said collusion and fraud, the plaintiff well knowing that he had brought said action and secured said judgment for the intent and purpose of further prosecuting this action against this defendant. Defendant further says that the Excelsior Oil Company had a good and sufficient defense to said action, and that it was not indebted to plaintiff in any amount whatever, all of which plaintiff and George F. Scofield well knew, but that plaintiff and George F. Scofield colluded together to obtain, and did obtain judgment aforesaid fraudulently, by withholding and refusing to make any defense.”

The admission of the plaintiff in reply to this answer is as follows: lie admits

“that plaintiff purposely refrained from making any answer or making any defense to said action and caused a default judgment to be taken therein in the amount stated by said defendant; that said action was commenced and said judgment secured partly for the purpose of further prosecuting this action against the said defendant Cobb; but as to all the averments of the said fifth defense not herein admitted, and which are not admissions of the averments of plaintiff’s said amended and supplemental petition, plaintiff says that he denies them and each of them.”

It was urged upon the original hearing and upon the hearing of this motion that this admission upon the part of the plaintiff was an admission of collusion between himself and the Excelsior Oil Company, or between himself and George F. Scofield acting for said -oil company. Such is not the legal effect of the admission. It is admitted that he took a default judgment; that he purposely refrained from making any answer, or making any defense in said action. It is a denial of any collusion between himself and anybody else to secure this judgment.

We come then to the question, do the facts justify us in holding that this judgment was obtained either by fraud or collusion ?

Collusion is defined in the A. & E. Ency. of Law (2d Ed.), Vol. 6, page 212, as follows:

“Collusion is where two persons, apparently in a hostile position and having conflicting interests, by arrangement do some act in order to injure a third person or deceive a court.”

In Cary v. Houston, etc., R. Co., 52 Fed. Rep., 675, it is defined as “an agreement between two or more persons unlawfully to defraud a person of his rights by the forms of law, or to obtain an object forbidden by law.”

“Collusion” is defined by AVebster as follows:
“In law, a deceitful arrangement or compact between two or more persons, for the one party to bring an action against the other for some evil purpose, as to defraud a third party of his right; a secret understanding between two parties, who plead or proceed fraudulently against each other, to the prejudice of a third person.”

Bouvier’s Law Dictionary defines collusion as follows:

"Collusion, fraud. An agreement between two or more persons to defraud a person of his rights by the forms of law, or to obtain an object forbidden by law.”

The facts here are that the plaintiff had obtained the judgment of the court of common pleas and the judgment of this court that the plaintiff was a creditor of the oil company to an amount greatly in excess of the amount prayed for in the action in which it is claimed there was this collusion and fraud. The Supreme Court had reversed those judgments, giving no intimation by such reversal as to there being any error in holding that the plaintiff was a creditor of the oil company to the amount which had been found by the lower courts, but holding that until the insolvency of the oil company was established by a judgment against it and the issuance -and return of an execution unsatisfied, the present action could not be maintained.

For the purpose of establishing such insolvency in the way pointed out by the Supreme Court, the action in which collusion is charged was brought. We think that the charge that the bringing of such action without any notice being served upon the defendant Cobb should not be characterized as a fraud, and that the fact that the oil company made no defense should not be characterized as collusion. It was not sought in that action to recover for an amount greater than two courts had already found that the oil company was indebted to the plaintiff, and though it might have been well for the plaintiff to have given notice to the defendant Cobb, we do not see that the failure to do so constituted a fraud upon him. The plaintiff manifestly expected to obtain no right against Cobb which he did not already have, except to have the proper evidence that the oil company was insolvent.

Entertaining these views, the motion for a new trial is overruled.