author: HENRY, J.

text:
    BANKS AND BANKING — PRINCIPAL AND AGENT
    [Cuyahoga (8th) Circuit Court,
    January 22, 1905.]
    Marvin, Winch and Henry, JJ.
    Park National Bank v. Travelers Insurance Co.
    Liability of Bank to Insurance Company for Amount of Premium Checks Drawn on Other Banks Cashed for Agent.
    Authority of an insurance broker to collect premiums from policy holders, raises no presumption of authority on his part to endorse and collect checks, and a bank which cashes them upon the endorsement of the agent and then collects them from the banks upon which they were drawn is liable to the principal as for conversion of the checks.
   HENRY, J.

This proceeding in error is brought to reverse a judgment for $2,409.67 recovered at the April term, 1905, of the Cuyahoga common pleas court by the Travelérs Ins. Co. against the Park National Bank. The action below was begun to recover from said bank the amounts of certain checks drawn orf other banks in favor of said insurance company by holders of its policies" in payment of premiums. The checks were given by the drawers about July 1, 1902, to one W. B. Uhl, an insurance broker, by whom the business was solicited, and the policies delivered. But although Uhl had authority thus to collect the premiums he, without authority, endorsed the checks in the insurance company’s name by his own agent, and deposited them to his own account in said bank, by which they were, collected in the ordinary, course from the banks on which they were drawn. Uhl’s deposit was subsequently withdrawn and consumed by him, and he became a fugitive. The insurance company’s attorneys learned of Uhl’s misconduct October 29, 1902, having consumed the interval in the investigation and attempted settlement of the matter with Uhl’s friends.

At the trial, and upon the court’s ruling that the defendant had the burden, the bank put in its evidence first. After both parties had rested, each asked the court to direct a verdict in its favor. When the defendant’s motion was disallowed, it made no request to go to the jury upon- the facts, and the court was thus clothed with the functions of a jury, so that the verdict for the plaintiff, which the court thereupon directed, can not here be set aside unless clearly against the weight of evidence. First National Bank v. Hayes & Sons, 64 Ohio St., 100 [59 N. E, 893],

It is claimed, however, that the verdict thus directed is founded on insufficient evidence and on a petition which states no cause of action. The bank insists that the insurance company has its remedy against the policy holders, because, on this state of facts, the premiums which they owed have never been paid, payment of their checks by the drawees upon forged endorsements being, in law, no payment at all. The fact that the policy holders may have recourse upon their own banks, and the latter, in turn, upon the defendant below, affords no warrant, it is urged, for the short cut sought to be taken here; for the intervening parties may well have defenses inter se that are not available in this action, and, in any event, there is no privity between the parties here.

We think, however, that the rule of Shaffer v. McKee, 19 .Ohio St. 527, presents a complete answer to this contention. The syllabus is:

“A debtor of the plaintiff enclosed and mailed to her a draft on a bank in New York, payable to her order. The draft was stolen from the mail and the thief, having placed a forged endorsement of the plaintiff’s name thereon, sold the same to the defendant, who drew from the bank the money and appropriated it to his own use. Held: On this state of facts the plaintiff was entitled to recover the amount of the draft from the defendant.”

It is said, however, that the reasoning in that case proceeds upon a state of the law which does not now prevail, for there the plaintiff ivas permitted to recover against the defendant because she might have recovered against the drawee, the action being in the nature of trover and the damages being the amount which could have been recovered from the bank. But we think the checks in this case, whose value the defendant below received, were clearly things of value, the property of the insurance company; that, misled by Uhl’s forgery and false representation of agency, the bank converted this property; that on these facts it is liable to this action for damages, and that it is no answer to say that some one else may also have incurred a liability in the transaction. Nor do we know of any principle on which, a person whose property has been thus converted owes a duty to the person converting it of notifying the latter when the conversion is discovered or of exercising any greater promptness or diligence in making demand than was employed in this ease.

The defendant below, having interposed by general denial .and other allegations, the defense that Uhl had authority from the plaintiff to endorse the checks in question, and that, even if he was without authority, he had actually paid the proceeds to plaintiff, was charged with the burden of making good those defenses, as the court below rightly ruled. Uhl’s admitted authority to collect premiums from the policy holders and his right to commissions thereon, create no presumption of authority on his part to endorse and collect checks made payable to the order of his principal. We find no error in this record and the judgment below is affirmed.

Marvin and Winch, JJ., concur.


source: Caselaw Access Project

author: WINCH, J.

license: Public Domain

text:
    LANDLORD AND TENANT
    [Cuyahoga (8th) Circuit Court,
    December 12, 1904.]
    Hale, Marvin and Winch, JJ.
    Bankers’ Fraternal Union v. Williamson Co.
    Clause In Lease Regarding Delay in Giving Possession Construed as Postponement, not Limitation on Damages Recoverable.
    When a clause in a lease provides that the lessor shall not be liable in damages for any failure on its part to complete the building leased in time for occupancy under the terms of the lease, but will endeavor to have it completed at that time and in case of failure so to do, the lessee shall be entitled to a proportionate rebate of rent, such clause postpones the date when the lease becomes effective, in case the building is not completed, and is not a mere limitation of damages on the part of lessor for nondelivery, and gives lessee no right to repudiate the contract of lease because the premises are not ready for occupancy.

      Hogan & Parmely, for plaintiff in error.

      Ford, Snyder & Henry, for defendant in error.
   WINCH, J.

The Williamson Company brought its action in the common pleas court against the Bankers’ Fraternal Union to recover for the rent of certain offices in the Williamson Building, Cleveland, Ohio, under the terms and covenants of a written lease entered into between the parties wherein the lessor demised certain premises for the term of three years from the first day of April, 1900, and the lessee agreed to pay as rent for the demised premises for said term the sum of one thousand dollars per annum in monthly installments in advance.

The eighth clause of said lease contains the following provision !

“Lessor shall not be liable in damages for any failure on its part to complete the Williamson Building in time for occupancy under the terms thereof. Said lessor, however, agrees to use its best endeavors so as to complete said building, and in the event of any failure so to do the lessee shall be entitled to a proportionate rebate of the rent for the premises hereby leased.”

The defendant below tendered issue as to the authority of the person who signed the lease for it to bind the corporation and as a further defense alleged that said offices were not completed ready for occupancy April 1, 1900, and that the lessor failing to give it possession of the premises on said day the defendant on said day rescinded and canceled said lease, refused to be bound thereby and immediately so notified the lessor.

These issues being referred to a jury, there was a verdict for the plaintiff below and the judgment thereon we are now asked to review.

As to the authority of one Myler, who signed said lease, to bind the defendant below, the question was fairly submitted to the jury, and we are not disposed to disturb its findings with regard thereto.

The alleged rescission of the contract by the lessor’s failure to give possession on April 1, 1900, is a legal proposition and is properly brought before this court for review by exceptions of defendant below to the court’s charge as given and its refusal to charge as requested by said defendant.

There was evidence offered at the trial that the building was not completed on said day and that possession of said offices could not be taken on that day: there was no evidence that the lessor had not used its best endeavors so to complete, the building.

We are thus called upon to construe that part of the eighth clause of said lease heretofore quoted.

Counsel for plaintiff in error has argued that the evidence in this ease shows a breach on the part of the lessor of the covenant to give possession; that the time for the delivery of possession to the tenant is treated as of the essence of the lease and if the landlord refuses to deliver possession at the time specified, the tenant may abandon the lease, or he may affirm the lease and sue the lessor for damages .for the breach of the covenant; that the law thus stated, giving the lessee an option as to his remedies, would be applicable to this case were it not for said eighth clause of the lease; that the sole purpose and effect of said clause is to limit the lessor’s remedy in damages without taking from it its option to rescind the lease.

The supposed attitude and intention of the Williamson Co. at the time it prepared this lease is collo.qually stated by lessee’s counsel, as follows:

‘11 believe now that I will be able to deliver to you the possession of these rooms on April 1, 1900, consequently I will make; your term begin on that date and have your rent payable from then. But, for fear that I may be unable to do so, I propose, as a matter of precaution, to limit my liability in damages to you. If I am unable to deliver possession to you on April 1, 1900, you may have all the remedies that- the law gives you therefor, except that I am not to be liable to you in damages for such failure. I agree, however, to use my best endeavors to have the building completed and these rooms ready for occupancy at the commencement of your term. If I fail, however, and you prefer to hold me to the lease and accept possession of the rooms when I am able to deliver them to you, then you are only to be entitled to a rebate of the rent, provided for in the lease from the date of the commencement of the term to the time you receive possession of the rooms. If I fail to use my best endeavors to complete the building and have it ready for occupancy by April 1, 1900, then of course I will be responsible to you for such damages as the law gives you, in event that you elect to hold me to this lease; otherwise not, except as herein provided.”

We are inclined to think that the parties were not conti’acting with regard to lessee’s remedies in case of the lessor’s breach of the covenants of the lease, but were contracting with regard to the term of the lease, when it was to begin, if the building was not completed on time, and that it would be more proper to put the lessor’s attitude and intention as follows:

“If I am unable to deliver possession to you on April 1, 1900, it is hereby agreed that the term hereby granted shall not begin until the building is completed and I can give you possession, and you shall not be liable for rent until the building is so completed. ’ ’

This is the construction given to the eighth clause of the lease by the trial judge, and we find no error in it.

Judgment affirmed.

Hale and Marvin, JJ., concur.


text:
    COSTS
    [Cuyahoga (8th) Circuit Court,
    March 28, 1905.]
    Marvin, Winch and Henry, JJ.
    T. J. Kerns v. Augusta F. Linder et al.
    Right to Have Costs Retaxed Lost by Laches.
    A motion to have costs retaxed should be made within a reasonable time after the judgment awarding them, and one who has waited four years before making such a motion has been guilty of laches.
   WINCH, J.

This is a motion to retax costs awarded by the judgment of this court on November 7, 1901. The docket shows that after judgment by this court the case went to the Supreme Court and was there dismissed.

While there is some merit in the contention that some part of the costs complained of were excessive and improperly charged against the defendant, Augusta F. Linder, we think this motion is altogether too late to be entertained by this court. Since said costs were taxed almost all the officials connected with the litigation, such as the clerk and sheriff, have gone out of office, and only one judge who sat in the case is now on the bench.

A motion to retax costs should be made within a reasonable time after the judgment awarding them, so that the court can call upon its officers to explain the items of the cost bill. The right to have costs retaxed may be lost by laches of the party against whom they are taxed. 11 Cye., 165; 5 Ene. of PI. & Pr., 248, and eases cited in notes.

This motion is made more than four years after the costs were taxed and entered on the dockets of the court, and we hold that defendant has waived his right to have the same retaxed and the motion is overruled.

Marvin and Henry, JJ., concur.


text:
    DIVORCE AND ALIMONY — INSANE PERSONS
    [Cuyahoga (8th) Circuit Court,
    1906.]
    Marvin, Winch and Henry, JJ.
    Mary Keerlick v. Thomas Keerlick.
    Trustee Should be Appointed for Insane Party.
    When an insane party is sued for divorce the court should appoint a trustee to defend the suit, as in other cases.
   WINCH, J.

Plaintiff brought her action against the defendant praying for divorce, custody of children, alimony, and that she be decreed to be the sole owner of certain real estate which she claims to have paid for herself, although the record title thereto is in the plaintiff and defendant jointly. Extreme cruelty and gross neglect of duty are alleged as the grounds for divorce.

The petition further alleges:

“Defendant is now an inmate of the Cleveland Hospital for Insane, duly committed by the probate court of Cuyahoga county, and is hopelessly insane beyond hope of recovery. All of the grounds for divorce above set forth arose prior to the insanity of the defendant and while he was in good health and of sound mind.”

Service was had by delivering copies of the summons and of the petition to the defendant, and like copies for him to Dr. A. B. Howard, superintendent of the state hospital, in which the defendant is detained.

Thereupon the court of common pleas appointed a trustee for the defendant in the suit, finding that his legal guardian had an interest in the controversy adverse to defendant; and the trustee so appointed answered, admitting the marriage, birth of children, and insanity of the defendant, as alleged in the petition, but denying all other allegations therein.

At a subsequent term the trial court made the following order in the cause:

“This cause having been duly advanced, came on this day for hearing, whereupon the court without final hearmg dismissed the petition of the plaintiff at her costs, for which judgment is rendered against her. ’ ’

Notice of appeal was given, bond fixed and given, and the case brought into this court under favor of Sec. 5706 R. S. (Sec. ,12002 G. C.), which reads:

“No appeal shall be allowed from any judgment or order of the court of common xoleas undec this chapter, except from an order dismissing the petition without final hearing, or from a final order or judgment granting or refusing alimony, or in cases under Sec. 5705 [12001] (injunction against intemperate husband from squandering property); when judgment is rendered for both divorce and alimony, the appeal shall apply only to so much of the judgment as relates to the alimony; and when the appeal is taken by the wife, she shall not be required to give bond. ’ ’

In this court a motion is made to dismiss the appeal, but said motion is overruled, as it is clear that the case is appealable as to the property rights of the parties, and we do not decide whether or not, as to the divorce, an order was made dismissing the petition without final hearing, within the intendment of the statute, so as to require this court to hear and determine whether a divorce should be granted to the plaintiff.

Further objection is made to this court hearing the case, based upon the defendant’s insanity.

So far as that objection amounts to a demurrer to the petition, it is overruled, for we know no good reason why the property rights of the parties should not be adjudicated, even though the defendant is insane. Whether the present insanity is a bar to divorce, we do not now decide.

But it is said that this case should not be tried, because there is no provision in the chapter on divorce authorizing the-appointment of a trustee who may make a defense for the defendant, which his insanity precludes him from making for himself.

In the case of Johnson v. Pomeroy, 31 Ohio St. 247, 248, it is said:

“An insane person may be sued and jurisdiction over his person acquired by the like process as if he were sane. But when it is made to appear to the court that a party to the suit is insane, it is made the duty of the court by statute (S. & C., 385, See. 7) to appoint a trustee to prosecute or defend the suit for and on behalf of such insane party.”

The statute referred to is now known as Sec. 5000 R. S. (Sec. 11249 G. C.), and is found in the revision and consolidation of the laws relating to civil procedure enacted May 14, 1878 (75 O. L., 597, 606), but was originally enacted March 14, 1853 (51 O. L., 473, Sec. 4), and then read:

“Whenever any suit in court now pending, or that may hereafter be instituted, it shall manifestly appear to the court that any person who ÍS' party to such suit is an idiot, lunatic, or insane person,” the court may appoint a trustee.

This act was passed three days after the legislature had adopted the original code of civil procedure (51 O. L., 57) and the act concerning divorce and alimony (51 O. L., 377), both of which were also carried into the revision and consolidation of the laws relating to civil procedure, above referred to.

The code provided for “one form of action, which shall be called a civil action,” and the provisions regarding divorce constituted a “special proceeding,” so designated in the revision (75 O. L., 726), and so held by the Supreme Court. State v. Cook, 66 Ohio St. 566, 572 [64 N. E. 567; 58 L. R. *A. 625]. •

Section 604 of the code of 1853 (51 O. L., 161) provided:

“Until the legislature otherwise provide, this code shall not affect * * * proceedings under statutes relating to dower, divorce or alimony; * * # but such proceedings may be prosecuted under the code, whenever it is applicable.”

This section dropped out in the revision, and in its place appears Sec. 4956 R. S. (See. 10022 G. C.), which reads:

“Where in part three of this revision special provision is made as to service, pleadings, competency of witnesses, or in any other respect, inconsistent with the general provisions in this title, the special provisions shall govern, unless it appears that the provisions are cumulative.”

Considering this history of the statutes, we have concluded that as there is no special provision in the chapter on divorce with regard to the procedure in the case of an insane party, the general statutes on the subject apply, and that a trustee was properly appointed for the insane defendant.

The motion to dismiss the petition is, for the reason stated, overruled and the case is assigned for trial.

Marvin and Hunky, JJ., concur.


text:
    APPEALS — MORTGAGES
    [Cuyahoga (8th) Circuit Court,
    1906.]
    Marvin, Winch and Henry, JJi.
    Curtiss-Ambler Realty Co. v. Mary Tweedie et al.
    ■ . Personal Judgment on Mortgage Note not Appealable though Joined in Foreclosure.
    When an action is brought to foreclose a mortgage and personal judgment is asked upon the mortgage note, the union of legal and equitable causes of action does not prevent the submission to a jury of the issues raised as to the note, and the case on the note is not appealable.
    2. Equitable Defense to Note Not Appealable.
    An answer setting up an equitable defense to an action on a note does not make the case appealable when the answer, if sustained, would not extinguish plaintiff’s demand but only result in allowing certain credits.
   WINCH, J.

A motion is mqde in this case to dismiss the appeal on the ground that upon the issues joined in the common pleas court the parties were entitled to demand a jury.

The petition sets up a promissory note and a mortgage given to secure it; recites that certain of the mortgaged premises were released from the mortgage and other property deeded to certain persons to hold in trust as security for the payment of said note and in lieu of the premises released, and sets forth certain expenses incurred and taxes paid in and about the.transfer of securities.

The prayer of the petition is for a money judgment and that the several securities be subjected to the payment thereof.

The amended answer of the makers of the note admits the execution of the note and mortgage, but alleges that by fraud and misrepresentation the note was obtained from them for a larger sum than was owing by them to plaintiff and that a farm was deeded to a trustee, as alleged in the petition, was not so deeded as security for the note, but as payment thereof, and that certain city property was deeded to a trustee for the interest of said defendants and not as security for said note.

There is no prayer that the original note and mortgage be set aside. On the contrary, the answer recognizes the note and its prayer is that credits be made upon the note as claimed by defendants and that the farm be decreed to belong to plaintiff and the said city property to said defendants. The credits claimed would not extinguish the note.

The case was tried in the common pleas court without the intervention of a jury; the issues were found in favor of .plaintiff, and personal judgment rendered on the'note and the securities ordered subjected to its payment.

It has been repeatedly held in this state that where an action is brought to foreclose a mortgage and personal judgment is asked upon the mortgage note, the union of legal and equitable causes of action does not prevent a submission to a jury of the issues raised as to the note, and the ease is not appealable. Ladd v. James, 10 Ohio St. 437.. *

The fact that the answer sets up an equitable defense does not make this case appealable, because it goes only to the credits upon the note, and, if sustained, would not extinguish the plaintiff’s demand. Raymond v. Toledo, St. L. & K. C. Ry., 57 Ohio St. 271, 288 [48 N. E. 1093],

Motion to dismiss appeal granted.

Marvin and Henry, JJ., concur.


text:
    EXECUTORS AND ADMINISTRATORS — GIFTS
    [Cuyahoga (8th) Circuit Court,
    1906.]
    Winch, Henry and Laubie, JJ.
    Judge Lauhie of Seventh Circuit Sitting in Place of Judge Marvin.
    Mary Lally v. Mary Lally et al.
    Deed of Gift from Widow to Brother of Intestate, Acting as Administrator, Scrutinized.
    Although as to the title to real estate, no legal fiduciary relationship exists between the administrator of an estate and the widow of his intestate, a de facto relationship of that character may exist; hence where the administrator is the brother of the intestate and accustomed to doing business and the widow is illiterate and not accustomed to doing business, a deed of gift from the latter to the former could only be made after full disclosure to the donor of her rights in the property, and when such conveyance is sought to be set aside it is the duty of the court to scrutinize jealously the conduct of the donee and the comprehension of the donor in respect to the entire transaction.

      Herman P reus ser, for plaintiff.

      McCasUn & Cannon and Jas. F. Walsh, for defendants.
   HENRY, J.

This is an appeal by plaintiff from the judgment of the court of common pleas in an action to set aside a conveyance •which she alleges was fraudulently procured from her by her brother-in-law, Michael Lally, since deceased. The defendants are Michael Lally’s devisees, etc. *

John Lally died intestate November 20, 1903, without issue, leaving a house and lot on Phelps street, in Cleveland, which he had purchased, and personal property consisting chiefly of bank deposits. He and his brother Michael had been intimately associated as co-administrators of an estate, and John’s widow, who is an illiterate woman about 65 years old, had confidence in Michael and consented to his appointment, December 2, 1903, as an administrator of her husband’s estate. At the same time she signed a deed to Michael of the Phelps street property, and he executed a life lease thereof to her. She also consented to a distribution of the bank deposits, but inasmuch as the personal property is the subject of a separate action still pending, we refrain from discussing this feature of the transaction. All this business was transacted at the office of James F. Walsh, Esq., of counsel in this cause. The evidence shows no actual fraud or misrepresentation in the premises, but on the contrary, an effort on the part of the widow to carry out what she believed to be her late husband’s wishes. He had been her second husband and she had had issue by her former marriage. It is said that the Phelps street property had been paid for by John, Michael and a sister, as a home for their mother in her lifetime, and title taken in John’s name with a life lease to the mother; and that John’s widow, knowing this, wanted a similar provision for herself, but so arranged that the property would belong to Michael on her death. The source of the original purchase money is not proved in this case, but we think it is proved that John’s widow signed the deed which she now seeks to set aside, and that she knew or should have known what she was signing. She alleges that she first discovered the fact that she had made such a conveyance about one month thereafter, at Michael Lally’s funeral, and the files here show that she brought this action within a fortnight afterwards.

The main question in this ease is whether and under what circumstances one occupying such a relation to another, as that of Michael Lally to his brother’s widow, can take a gift of land from that other. Here the fact of confidence reposed is abundantly established, in addition to such confidence, if any, as is legally implied from the kinship by affinity, the relationship between an intestate’s widow and the administrator of the estate, and the inequality of footing as between a man accustomed to the transaction of business and an illiterate widow whose husband has been dead but twelve days.

It is pointed out to us, and we agree, that no official fiduciary relationship subsists between an administrator and the widow of his intestate, in respect to the title to the latter’s real pstate. But we think a de facto relationship of that character may exist between parties so situated which will give rise to legal duties; and under the facts of this ease we hold that the duty of making a full and complete disclosure to plaintiff of her rights as heir of her deceased husband rested upon Michael Lally before he could take a valid gift from her of the real estate which she had thus inherited. And it is the duty of a court of equity, where such a gift is sought to be set aside, to scrutinize jealously the conduct of the donee and the comprehension of the donor in respect to the entire transaction. The rule as to purchases applies with even more force to such gifts as this. Walker v. Shepard, 210 Ill., 100 [71 N. E. 422]; Pairo v. Vickery, 37 Md., 467; Sandlin v. Davis, 81 Ky. 34 [4 Ky. Law Rep., 675].

No disclosure of her rights appears to have been made to John Rally’s widow. Whether she supposed she was giving away her own ¡property or merely effectuating her husband’s intended disposition of his property, is at best uncertain. Under these circumstances the gift can not be upheld, but must be set aside and the deed of conveyance canceled. The plaintiff may take a decree in accordance with this opinion.

Winch and Laubib, JJ., concur.


text:
    CORPORATIONS
    [Cuyahoga (8th) Circuit Court,
    November 24, 1905.]
    Marvin, Winch and Henry, JJ.
    David B. Carpenter v. Andrew Williamson et al.
    Stockholder Primarily must Redress Wrongs Through the Corporation.
    A stockholder in a corporation can not maintain an action to redress wrongs done the corporation, whereby he has suffered in his stockholding interest, unless he alleges an effort to secure redress through the corporation, its officers, assignee or receiver, and neglect or refusal on their part to act.

      David B. Carpenter, for plaintiff in error.

      E. Hitchens, for defendants in error.
   WINCH, J.

The petition in this case attempts to set forth a cause of action growing out of the defendant’s collusion and fraudulent management or mismanagement, of a corporation in which plaintiff was a stockholder, by reason whereof said corporation was placed in the hands of a receiver and its entire assets transferred to defendants under the guise of a new corporation which is also made defendant to the action.

The plaintiff says that the suit is one of general interest to all the other stockholders and creditors of said original company, who are very numerous, and that he brings the action not only for himself, but for all other stockholders and creditors thereof who may come in to prosecute it.

One of the defendants demurred to the petition in the common pleas court, the demurrer was sustained, judgment entered on the demurrer, and the matter brought here for review of said judgment.

The petition is very voluminous, but we have searched it in vain for any allegations that plaintiff ever attempted to secure redress for the wrongs of which he complains through the original corporation or its receiver, though it is manifest that he was wronged, if at all, because of his ownership of stock in a corporation whose rights were infringed.

Neither is said corporation or its receiver a party to the action.

We hold that a stockholder can not maintain an action to redress wrongs done the corporation, whereby he has suffered in his stock-holding interest, unless he allege an effort to secure redress through the corporation, its officers, assignee or receiver, and neglect or refusal on their part to act.

No authorities on this proposition need be cited. The whole of the eighty-ninth chapter in the fourth volume of Thompson, Commentaries on the Law of Corporations is on this subject, and this court has heretofore recognized the rule. Larwill v. Burke, 10 Circ. Dec. 579 (19 R. 449).

The petition being deficient in the respect pointed out, it failed to state a cause of action, and the demurrer to it was properly sustained.

Judgment affirmed.

Marvin and Henry, JJ., concur.


text:
    BROKERS — SALES
    [Cuyahoga (8th) Circuit Court,
    November 24, 1905.]
    Marvin, Winch and Henry, JJ.
    Norton T. Horr, Assignee, v. R. M. Baker.
    Tender of Stock is Necessary before Action for Breach of Contract of Sale by Broker.
    When a stock broker contracts with another broker to sell him certain stock at a certain price, delivery to be made at any time within ninety days, and then makes an assignment for the benefit of creditors without having any of the stock in question with which to make tender, in the absence of any rules of the stock exchange governing the transaction the assignee has no right as against the other broker for the difference between the contract price of the stock and the price at which he purchased it in the open market within the ninety days.
   WINCH, J.

R. H. York & Co. and E. M. Baker were both members of the Cleveland Stock Exchange, and on April 13, 1905, the former agreed to sell 'the latter 200 shares of American Ship Building stock at $55 per share, seller to have the privilege of delivering said stock at any time within ninety days thereafter,' the buyer to pay for said stock upon delivery. '

Two weeks later R. H. York & Co. failed and made a voluntary assignment for the benefit of creditors, to the plaintiff. The next day Baker purchased in the open market 200 shares of said stock and paid thereafter at the rate of $53 per share.

Thereupon, the assignee claiming from Baker the sum of four hundred dollars, being the difference at $2 per share on said 200 shares of stock, and Baker denying the claim, they submitted their contention to the common pleas court as an agreed case in which the above facts were set forth and also the further statements that at the time of the transaction first mentioned the parties intended actual delivery of the stock should be made, but that at the time of the assignment R. H. York & Co. did not have on hand for delivery any of the stock referred to.

It was further agreed that the rights of the parties are covered by the rules of the Cleveland Stock Exchange, but that said rules do not expressly regulate the rights of the parties under said circumstances, although said ¿ules provide that when a member of the exchange fails, all his transactions upon the exchange shall be at once “closed,” and for all debts then existing to members of the exchange such members shall have a lien upon the membership seat of the failing member.

As there is no averment in the agreed statement that York & Co. tendered the stock to Baker, but, on the contrary, it appears therefrom that York & Co. were and are utterly unable to make such tender, under familiar rules of law, plaintiff can not recover unless the rules of the stock exchange excuses tender under such circumstances as are presented here, and such rules are énforcible in the courts.

It is said that the word ‘ closed, ’ ’ as found in said rules, implies a settlement upon differences. . No definition of the word is given in the agreed statement and the court has no judicial knowledge of its meaning. Doubtless the statement of facts contained no definition of the meaning of the word “closed” as used upon the exchange and in its rules, because such definition would not be consistent with the allegation that the parties intended actual delivery of the stock. If, indeed, to close a transaction upon the exchange means to settle upon differences, then clearly we should have a gambling contract, and the court could not enforce it. Nor is plaintiff’s position strengthened by the lien provided by the rules, which the exchange is in a position to enforce, for if there is no debt, the security for it is unavailable. The common pleas court having also come to this conclusion, its judgment is affirmed.

Marvin and Henry, JJ., concur.


author: HALE, J.

text:
    CONVICTS — MUNICIPAL CQEPOEATIONS
    [Cuyahoga (8th) Circuit Court,
    May 31, 1901.]
    Caldwell, Hale and Marvin, JJ.
    David H. White v. Cleveland (City).
    Municipality not Liable for Injury to One at Work Under Prison Sentence.

      W. C. Rogers and L. H. Ware, for plaintiff in error.

      Beacom, Babcock, Excell, Gage & Carey, for defendant in error.
   HALE, J.

In this case we hold that a prisoner convicted of a violation of a city ordinance, and sentenced to the workhouse at hard labor, can not maintain an action against the city for negligence of its officers and employees in the execution of the sentence, either in negligently providing defective machinery upon which the prisoner is compelled to work, or negligently directing the manner in which the work is to be done.

This results in an affirmance of the judgment of the court of common pleas.

Caldwell and Marvin, JJ., concur.


author: MARVIN, J.

text:
    APPEAL
    [Cuyahoga (8th) Circuit Court,
    March 27, 1905.]
    Marvin, Winch and Henry, JJ.
    South Cleveland Banking Co. v. H. L. Nachtrieb et al.
    No Appeal from Motion to Set Aside Final Order.
    Appeals may only be taken from final orders or decrees, and a motion to set aside such an order or decree is not appealable.
   MARVIN, J.

This case is heard on a motion to dismiss the appeal which was taken by one Crowell, who was not a party to the proceeding but was interested in the result. Crowell was appointed by the common pleas court in this action as receiver of the property of H. N. Nachtrieb. When his report was filed as such, the court of common pleas found a certain amount of money to be in his hands as such receiver, and ordered that the entire amount be distributed to the creditors, and that the receiver should have no compensation for his services. This order was made on October 26, 1904.

On December 15, 1904, Crowell made a motion in the same court to have the order and judgment set aside. This motion was overruled, and it is from this order of the court overruling said motion that Crowell gave notice and bond, and filed transcript for appeal to this court. The motion now disposed of is made by the South Cleveland Banking Co., on the ground that the order is not appealable. The final order in the case was that of October 27, 1904, and without consideration of the question whether Crowell might or might not appeal the case, it is perfectly clear that what he seeks to appeal is not the final order of the court of common pleas.

The statutes provide within what time thereafter proceedings may be taken. Crowell allowed the case to rest from that day until December 15, and then filed a motion to set aside that final order of October. The court refused to set it aside. If an appeal can be taken from such an order, all one has to do who desires to appeal his case is to leave the final order, pay no attention to it until a convenient season, and then file a motion to have it set aside. There is nothing here for anybody to appeal from. The motion to dismiss the appeal is sustained.

Winch and Henry, JJ., concur.


text:
    TRUSTS AND TRUSTEES
    [Cuyahoga (8th) Circuit Court,
    December 24, 1904.]
    Hale, Marvin and Winch, JJ.
    S. T. LeBaron v. Arthur A. Skeels et al.
    Evidence to Engraft Trust on Deed Absolute, Must be Clear and Convincing.
    The evidence necessary to engraft a trust on lands conveyed by deed absolute must be clear and convincing and where the plaintiff has allowed eight years to elapse before seeking to establish the trust, the evidence of one prejudiced witness as to declarations of the original grantee, since deceased, will not be sufficient to meet that requirement.
    Appeal.
   WINCH, J.

The petition was originally filed in the common pleas court January 23,1902, and in it the plaintiff asks the court to ingraft a trust upon a deed absolute on its face whereby on May 26,1891, eleven years before, certain premises in Cuyahoga county were deeded to one Frank B. Skeels. The plaintiff says that he paid one-half of the purchase price for said premises and that at the time said deed was made it was the express understanding that said Skeels should take title in his own name in trust for himself and plaintiff, each to have a one-half interest in said premises.

The records with regard to said title, beginning with said deed to Skeels in 1891, show that on June 15, 1894, Skeels deeded said premises, by deed absolute on its face, to one C. A. Bejcek; January 22, 1895, by similar deed, the premises were conveyed by Bejcek to Rose Skeels, wife of said Frank B. Skeels; she died November 8, 1897, and by her will this property was left to her husband; January 31, 1900, he deeded the premises, by quitclaim deed, to his brother Arthur, defendant in this action; the proof shows and it is admitted by Arthur, that this deed was in reality a mortgage to secure money due and thereafter to be advanced by Arthur to his brother; about six months later Frank became insane and died about a year later, June 27, 1901, after having been confined in a private hospital for the insane. The following September his administrator brought proceedings to sell this land as part of his decedent’s estate, made Arthur party defendant to said suit and the latter set up the conveyance to him as a mortgage, claiming $700 due him thereunder. This was found to be the case, sale was ordered and made and Arthur became purchaser of the premises for $1,200, $700 of which was paid by crediting on the purchase price the debt due him from the estate, the. balance, $500, remaining in his hands as guardian of Frank’s two minor children, one of whom has since come of age and has been paid her share; the $250 due the other minor is still held by defendant, Arthur A. Skeels, as his guardian.

The only testimony upon which it is sought to ingraft a trust upon this property is that of C. A. Bejcek, who says that he formed a partnership with F. B. Skeels in 1891 and was then shown deeds in the safe which said Skeels remarked represented the title to property which he held in trust for himself and plaintiff; when the deed was made to him three years later witness testifies that said Skeels stated that he was financially involved and deeded the property to the witness to hold as in trust for himself and plaintiff, one-half for each, and that the next year he deeded said property to the wife at said Skeel’s request and then told her that he deeded it to her in trust to hold for the equal benefit of her husband and plaintiff.

The lapse of time since these transactions, the witness’ personal difficulties with defendant about other matters, the utter failure of proof that plaintiff made any effort to establish this secret trust from the time that the wife took title in 1895 until eight years later when he brought suit, meanwhile the wife dying and the husband first becoming insane and a year later dying himself — all these circumstances tend to weaken the effect of said witness’ statements, so that we are unable to say that uncorroborated as he is this witness brings the proof within the rule laid in the case of Boughman v. Boughman, 69 Ohio St. 273 [69 N. E. 430], which “requires that parol evidence to engraft an express trust in lands upon a deed absolute shall clearly and convincingly show that contemporaneously with the execution of the deed the terms of the trust were declared and beneficiaries designated.”

Again it was sought to show that defendant had notice of plaintiff’s claims, both before he took deed in 1900 and again before the land sale proceedings in the probate court in 1901, but, without stating the evidence on this subject, it is sufficient to say that it was not satisfactory. -

Perhaps the principal reason we decide this case against the plaintiff is because his conduct was so absolutely indifferent as to his alleged interest in the property for about eleven years, during which time he allowed the person he claims was trustee for him to convey the property as his own and to become incapacitated and die without making any claim upon him or effort to establish his interest.

Secret trusts are not favored and we fear this secret has died with the trustee, if ever there was one. It would have been so simple for plaintiff to have taken from Frank B. Skeels a written statement of his alleged trusteeship that he must not now complain if the rules regarding parol proof are enforced against him.

The petition is dismissed.

Hale and Marvin, JJ., concur.


text:
    SERVICE UPON A GARNISHEE
    [Cuyahoga (8th) Circuit Court,
    December 24, 1904.]
    Hale, Marvin and Winch, JJ.

      Anna Clark Murphy v. Cleveland & S. Brewing Co. et al.
    Nonresident Defendant not Subject to Personal Service.
    A civil action against a garnishee under favor of Sec. 5551 R. S. (Sec. 11851 G. C.), brought for the purpose of reaching credits in the hands of the garnishee, is not an action for the recovery of specific property which would authorize personal service upon a nonresident defendant under Sec. 5049 and 5045 R. S. (Secs. 11292, 11297 G. C.)

      Affirmed, no opinion, Murphy v. Cleveland. & S.Brew. Co. 74 Ohio St., 506.

   WINCH, J.

In an action by plaintiff against one C. It. Barrett and others, the defendant brewing company was served with garnishee process and answered that it had no property in its possession or under its control belonging to said C. R. Barrett or others, defendants with him in said suit.

Thereupon plaintiff brought this action in the common pleas court against the brewing company, setting forth said attachment proceeding's, stating that the brewing company’s answer therein was not satisfactory and further alleging that when served in attachment on August 13, 1903, the brewing company had about $300 in its possession and under its control belonging to said debtors. The prayer of the petition was that the brewing company be ordered to disclose truly what if any property or credits of any kind it had in its possesion or under its control belonging to said debtors or either of them at the date of the attachment and for judgment for the amount of property and credits of every kind of said debtors, or for what may appear to be owing by the brewing company to them and for such other relief as the court may deem proper.

To this petition the brewing company answered, setting forth that on April 10, 1903, 189 shares of its capital stock stood upon its books in the name of C. R. Barrett; that on said day said Barrett was adjudicated a bankrupt by consideration of the United States District Court for the Northern District of Illinois; that by said court on May 14, 1903, the Equitable Trust Company of Chicago was duly appointed trustee of the estate of said C. R. Barrett and qualified as such; that upon the demand of said trustee said 189 shares of stock were transferred to it as trustee. That on August 1st, 1903, a dividend on said stock amounting to $283.50 was declared upon said stock, which amount is still in its possession and control, and that said trustee had demanded said dividend of it. The defendant further answered that at the time of the service upon it of said garnishee process it did not have, nor has it had at any time since, any property of any character in its custody or under its control belonging to any of said debtors.

Thereupon plaintiff filed an amended petition, making the Equitable Trust Company party defendant, setting forth the claim against Barrett and others, the attachment proceedings against the brewing company; its answer in said proceedings that it had no property belonging to the debtors; its answer in this case stating its possession of $283.50, dividend as aforesaid, and the statement that the Equitable Trust Company had demanded said dividend.

The prayer of the amended petition is that said trust company be required to assert its rights to said dividend and to maintain or relinquish the same against the plaintiff or the defendant brewing company, or be barred upon all claims in respect thereto, and for such other relief as the court might deem proper.

Upon this amended petition personal service was made upon the Equitable Trust Company of Chicago, by delivering to its president three copies of the writ and amended petition.

Thereupon the trust company, appearing only for the purpose of the motion and denying expressly the jurisdiction of the court over its person, moved the court to quash the service upon it. This motion was granted, plaintiff excepted and by petition in error brings before this court for review the ruling on said motion to quash, as the only matter for our consideration.

Plaintiff in error contends that the service complained of is authorized by Secs. 5049 and 5045 R. S. (Sees. 11297, 11292 G-. C.) Section 5049 authorizes personal service out of the state in cases where service by publication may be made. Section 5045 sets forth nine eases in which services may be had by publication, and counsel claims that this case comes under the fifth paragraph of said section, which reads as follows:

“In actions which relate to, or the subject of which is real or personal property in this state, when a defendant has or claims a lien thereon or an actual or contingent interest therein, or the relief demanded consists wholly or partly in excluding him from any interest therein, and such defendant is a non-resident of the state, or a foreign corporation, or his place of residence can not be ascertained. ’ ’

It will be noticed that such service may be had only “in all actions which relate to or the subject of which is real or personal property in this state.” That means specific real or personal property. No specific real property being in issue, the question arises: does this action relate to, or is the subject of it specific personal property?

We think not. The action was brought under favor of See 5551 R. S. (Sec. 11851 Gr. C.), which provides:

“If the garnishee fail to appear and answer, or if he appear and answer, and his disclosure be not satisfactory to the plaintiff * * * the plaintiff may proceed against him by civil action; and thereupon such proceedings may be had as in other actions, and judgment may be rendered in favor of the plaintiff for the amount of property and credits of every kind of the defendant in possession of the garnishee, and for what may appear to be owing by him to the defendant, and for the costs of thf proceedings against the garnishee.”

It thus appears that the action is one for damages in which judgment may be rendered against the defendant; it does not involve the recovery of specific property, but a judgment for the amount of such property and costs. No specific property is mentioned, but a credit on the books of the brewing company is sought to be reached.

The service had in this case was therefore unauthorized, and the objection to it was properly raised by the motion to quash it. Williams v. Welton, 28 Ohio St. 451-469; Hinch v. d’Utassy, 1 Dec. 372. Said motion was properly sustained and the judgment is affirmed.

Hale and Marvin, JJ., concur.


text:
    INSURANCE
    [Cuyahoga (8th) Circuit Court,
    November 18, 1904.]
    Hale, Marvin and Winch, JJ,
    Royal Insurance Co. v. M. Silberman.
    1. Notice of Loss to Soliciting Insurance Agent not Notice to Company.
    Section 3644 R. S. (Sec. 9586 G. C.), making the agent who solicits insurance the agent of the company, does not make him the agent of the company for all purposes, but only those connected with the negotiation of the contract, and notice of loss given to such agent will not constitute notice to the company.
    2. Question of Giving Notice of Loss to Insurance Company for Jury.
    When an insurance policy provides that immediate notice of loss shall be given the company, it is a question for the jury to determine, whether, under all the circumstances in the case, the insured has complied with that requirement in giving notice of a loss.
    3. Parol Evidence of Local Custom as to Notice of Loss not Admissible to Vary Policy Requirements.
    In determining whether or not the insured has complied with the condition of a policy that immediate notice of loss be given the company, evidence of a local custom by which notice of loss is given to the agent soliciting the insurance, is not admissible.

      Carpenter, Young & Stocker, for plaintiff in error.

      C. W. Stage and W. G. Guenther, for defendant in error.
   MARVIN, J.

This is a proceeding in error brought here to reverse a judgment of the court of common pleas of this county. Silberman was the owner of certain chattel property, baled rags, which were stored in a warehouse. Silberman obtained a policy of insurance upon these goods from the Royal Insurance Co. The insurance was brought about by one Max Levi obtaining for Silberman an application for this insurance. Levi represented no insurance company in which the risk would be taken; he applied to another insurance firm, Snider & Crittenden, and they again make the application, or ealled the attention of the agents, Tremaine, Draper & Co., of the Royal Insurance Co., and the policy was issued, put into the hands of Levi, and by him delivered to Silberman and the premium paid to Levi. The commissions were, undoubtedly, divided between the agents.

On August 19, 1901, a fire occurred which injured this property, and suit was brought to recover for this injury to the property by fire.

The insurance company set up as a defense that notice of the loss was not given to it as required by the terms of the policy.

The language of the policy in that regard to notice is: “If fire occur the insured shall give immediate notice of any loss thereby, in writing, to this company.”

On August 20, 1901, the day following the fire, Silberman gave oral notice to Levi of the loss. Levi told him to malye out a bill showing his loss, and this he did. Levi communicated to the firm of Snider & Crittenden the fact that the loss had occurred.

The testimony in regard to this notice to Levi was admitted by the court under objection of the defendant, and the court having allowed the testimony, charged the jury upon the effect of such evidence. Before giving the language of the court in its charge, attention should first be called to Sec. 3644 R. S. (See. 9586 G. C.), which reads:

“A person who solicits insurance and procures the application therefor, shall be held to be the agent of the party company or association thereafter issuing a policy upon such application or renewal thereof, anything in the application or policy to the contrary notwithstanding. ’ ’

The court charged the jury, in effect, that if they found that Levi solicited this insurance, the premium was paid to him, and he delivered the policy to the assured, then he was the agent of the company, upon whom it would be proper to serve notice of the loss under the policy, and that he would have authority to waive the conditions in the policy, which has already been read, that notice in writing must be given to the company in case of loss. There was no error in the admission of this testimony, if there was no error in the charge. It may be that the testimony might be admitted, though the charge was wrong.

Counsel representing the assured has furnished us a brief, and called attention to a considerable number of authorities in oral argument, all of which have been examined. An authority to which attention was not called is Wood, Insurance See. 419, which reads:

“Where an agent is entrusted with policies signed in blank, and is authorized to issue them upon the application of parties seeking insurance, he is thereby clothed with apparent authority to bind the party in reference to any condition of the contract, whether precedent or subsequent, and may waive notice or proofs of loss, and may bind the company by his admission in respect thereto. ’ ’

A number of the states have statutes similar to our statute, Sec. 3644 (9586), passed for the purpose of protecting people who obtain insurance through agents from the defenses which were made in many cases that the agent had not authority from the company, and that, therefore, representations made by such agent were not binding upon the company.

In Iowa, the statutes provide, “That he who solicits the insurance shall be the soliciting agent of the company, ’ ’ and under that statute it is held that knowledge of such agent of conditions existing at the time of the issuance of the policy, though they may be such as are negatived by the application, and are such as under the terms of the policy would forfeit the insurance, constitutes knowledge of the company. To that effect is the case of St. Paul Fire & M. Ins. Co. v. Sharer, 76 Iowa, 82 [41 N. W. 19]. In that case the policy was different from that which the insurance company intended and from that which any agent of the company was authorized to issue. The fact was, however, that it was not the regular agent of the insurance company, but one who was only so by force of the statute, to whom the conditions were known. The company brought suit to reform the contract after the fire; the court held that the knowledge of that soliciting agent was the knowledge of the company, and they could not, therefore, maintain their suit to reform the contract.

Other cases in Iowa are to that effect and hold that whatever knowledge the soliciting agent had, that is, he who solicits the insurance, and who by virtue of the statutes is the soliciting agent, is the knowledge of the company.

In Wisconsin the statutes provide: “That he who solicits the insurance is the agent of the company to all intent and purpose,” and it is held that such agent may, after the policy is issued, waive the provisions that there shall be no other insurance upon the property, without the consent, in writing, endorsed upon the policy of the company issuing the policy. It was so held in the case of Schomer v. Hekla Fire Ins. Co., 50 Wis., 675 [7 N. W. 544].

Attention has also been called to the case of Pollack v. German Fire Ins. Co. 127 Mich. 460 [86 N. W., 1017]. In this case, however, the direct question of whether the soliciting agent-' is the agent of the company, beyond being such agent for the purpose of the contract made between the insurance company and the assured by virtue of the policy is not raised. And the strongest authorities in that regard that we find are the authorities cited in Wood, Insurance, Sec. 419, to which attention has been called.

Elliott, Insurance, Sec. 165, which was not cited to us in the argument, but which seems to us to be directly in point, reads as follows:

The local agent of a fire insurance company had actual authority to accept applications for insurance, fix the premium or rate of insurance, and fill up, countersign and issue policies thereon, which he received from the company, already signed by its president and secretary. This was the extent of the agent’s actual authority, and there was no evidence tending to show that his apparent authority was other or greater than his actual authority. The policy required written notice of loss to be given to the company. It was held that the agent had no authority to receive or waive notice of loss and, hence, notice to him was not notice to the company.”

It will be noticed that the agent here spoken of was the local agent, but he had authority to accept applications for- insurance, to fix the premium or rate of insurance, to fill up and countersign and issue policies therein which he received from the company already signed by the president and secretary.

In Elliott, Insurance, Sec. 157, there is a discussion as to the agency of insurance brokers; and in other sections a discussion as to the difference between general and special agents. And, perhaps, one of the matters to be considered in this case is, as to what is meant by the word “agent” as used in our statutes.

Wood, Insurance, adopts the idea that he is -the agent of the company for all purposes. But is it necessary to hold that he is an agent for all purposes to accomplish the real purposes for which the statute was enacted? It seems hardly probable that the statute was passed for the purpose of making him an agent beyond the agency one would have who had the actual authority to accept applications, to fix the premiums, to fill up and countersign and issue the policy and receive the premium. One who has authority to do that would be clearly the agent of the company. But in the case referred to here, it was held that that kind of an agent had no authority to receive or waive notice of loss. The authority cited is Ermentrout v. Girard Fire & M. Ins. Co. 63 Minn., 305 [65 N. W. 635],

Now, I know that it does not appear from the statutes that he who is there designated or declared to be the agent of the company shall be only the local agent; but what has already been said seems to us to show that he ought not to be held by reason of the statutes to be an agent with greater authority than the agent spoken of in this case; and though he is such agent, that his knowledge of conditions and facts at the time of the issuing of the policy is to be held to be the knowledge of the company, and that he may waive the condition that there shall be no other insurance during the continuance of the policy.

In one of these cases to which attention has been called he may waive other conditions during the continuance of the policy while the policy is in force before the loss, yet to say that he is an agent who can do more than the local agent, seems to be carrying the statute further than most of the cases go.

In the case under consideration the question seems to be well considered and is fully disposed of. I read from the opinion, beginn ng '”i page 309, but premise that by saying that Seeley & Co. were the soliciting agents; they were the agents to whom the application was made, who delivered the policy, and who received the premium. The court says:

“If Seeley & Co. were the proper parties to whom to give this notice — in other words, if it was within the scope of their authority to receive notice of loss — we would not feel any doubt but that if, when they received verbal notice, they made no objection to its form, they would be deemed to have waived the omission to give it in writing. But it is self-evident that if they had no authority to receive.such notice, then they could waive nothing in the matter. Upon this state of facts, it was not within the scope of the authority of Seeley & Co. to receive or waive notice of loss, and hence notice to them was not notice to the company. Even if there could be any doubt of the correctness of this proposition as a new question, it has been too long and too well settled in this state to be now considered open. Bowlin v. Helda F. Ins. Co., 36 Minn., 433 [31 N. W., 859]; Shapiro v. Western Home Ins. Co., 51 Minn., 239 [53 N. W., 463]; Shapiro v. St. Paul, F. & M. Ins. Co., 61 Minn., 135 [63 N. W., 614], But we think the rule is correct upon both principle and authority. It is in accordance with the general principles of the law of agency. It is elementary that a principal is only liable for acts done by his agent within the scope of the authority, actual or apparent, with which the principal has clothed him;'that it rests entirely with the principal to determine the extent of the authority which he will give to his agent; also, that every person dealing with an assumed agent is bound, at his peril, to ascertain the nature and extent of the agent’s authority.
"In insurance cases courts frequently inaccurately classify agents as ‘local’ and ‘general.’ But the extent of the territory which is to be the field of his agency is no test of the extent of an agent’s authoxdty within that field. His field of operations may include the whole United States, and yet his powers be special and limited. On the other hand, his field of operations may be confined to a single county or city, and yet his ahthority within that field be unlimited. In the present case there is no question of apparent as distinguished from actual, authority. The question is simply one of actual authority, expressed or implied. Authority to act in the matter of a loss under the policy, after it has occurred, is not expressly given. All the authority expressed relates to the making of the coixtract of insurance. It is a fundamental principle in the law of agency that a delegation of power, unless its extent be otherwise expressly limited, carries with it, as a necessary incident, the power to do all those things which are reasonably necessary to carry into effect the main power expressly conferred. But it is equally fundamental that the power implied shall not be greater than that fairly and legitimately warranted by the facts; in other words, an implied agency is not to be extended by construction beyond the obvious purpose for which the agency was created. We do not think that mere authority to make a contract of insurance candes with it implied authority to act in the matter of a loss under the policy after it has occurred. If the implied authority extends to accepting notice of the loss, it would logically follow that it also extends to proof of loss, and even to the adjustment of the los$ —a length to which no court has ever gone. The rule which we have adopted is also in accordance with the general current of the authorities. Lohnes v. Insurance Co., 121 Mass., 439; Smith, v. Niagara F. Ins. Co., 60 Vt., 682 [15 Atl., 353 ;1 L. R. A. 216; 6 Am. St. 144]; Bush v. Westchester F. Ins. Co., 63 N. Y., 531.

And then the court in this case goes on to say that if it is to be held that proofs of loss may be made to any agent, he may waive proofs of loss and, legally followed out, he might Avaive the requirements of notice; he may Avaive the proofs of loss, and he may waive every other matter and adjust for the company, because it can be said that he is the agent of the company; therefore, whatever he does binds the company; but this court say in the opinion no one has ever claimed it went so far as that. That is, that there must be some limit to his agency. ¥e reach the conclusion that the statute does not make the soliciting agent, or the agent who solicits the application, the agent of the company, authorized to receive notice of loss. But in this connection evidence was permitted to go to the jury, also, as to a custom existing in this city at the time of the fire and at the time of the issuing of this policy, by which those sustaining loss, gave notice to the agent who delivered the policy; that that notice was sent on through whatever intermediate agents there were to the company. That was admitted under objection. We think it was error to admit it.

We have looked at the case Queen Ins. Co. of America v. Union Bank & Tr. Co. 49 C. C. A. 555 [111 Fed. 697], in which evidence as to a custom was held proper to be considered, but the ; "stora there under consideration was a custom among insuraii <• brokers by Avhieh, if application was made to an insurance broker or agent who could not issue a policy through the company represented by him, he arranged with the agent of some other company; and it was held that the insurance company was bound to know that custom. We think that is far removed from undertaking to show that a contract expressed in terms could by custom mean something different from what it provides.

The statute has said that an agent can do some things, which we have already stated, that will bind the company, though the acts of the agent are in violation of some of the terms expressed in the contract. Beyond that, we do not think the authorities go.

But, on September 17, 1901, Avritten notice was given to this company of the loss, and the court submitted to the jury the question of whether that was a sufficient compliance with the requirement that in case of loss immediate notice shall be given to the eompanju It was twenty-nine days after the loss. It was charged b3r the plaintiff in error that the court should have 'said, as a matter of law, that that notice was not a sufficient compliance with the law. In Ermentraut v. Girard Fire & M. Ins. Co., supra, it was held, as a matter of law, that notice after a period of about sixty days was, under the circumstances of that case, not a sufficient compliance with the requirement. Other cases have fixed certain periods. As a matter of law it has been held that the notice given at a certain time, after a certain number of daj^s, was not a sufficient compliance.

We think here it was proper to leave to the jury whether what was done under all the facts and circumstances of the case, which wore proper to be considered, was a sufficient compliance with the requirement to give immediate notice, and but for the fact that we find that the court gave to the jury certain things to take into consideration in determining that question, we should affirm its judgment. But the court in giving to the juiy the rulings by which they were to determine whether the notice given on September 17, was a sufficient compliance with the requirement that an immediate notice be given, said:

“And in determining whether or not the notice was given within reasonable time, you will consider all the circumstances in the case; consider the character of the plaintiff; the fact that he is a foreigner by birth; that his mother language is not English; that he neither reads English or writes it, nor speaks it very well; those are all circumstances affecting the obligation to be prompt. And you may also in that connection consider certain testimony which was introduced tending to show that it is the uniform custom in this city to give notice to the agent who has procured the risk; you may consider that as throwing light upon the propriety of his not giving any further notice for twenty-nine days.”

We think the court called attention to some things which the jury ought not to have been permitted to consider, and especially this matter of “custom.” We do not think that that bore at all upon the question of whether he should have given notice earlier, in writing. It is a mater of contract, not custom. He had contracted to give notice, immediate notice, which means, of course, within a reasonable time under the circumstances; but that time, we think, can not be varied by any custom which is shown here.

We have not been able to fully satisfy ourselves that the court should call attention to the fact that this man was not native born and did not understand our language. Some countenance is given to that in Elliott, Insurance, Sec. 188, in that the ignorance of the party assured is permitted to be considered; and we should not reverse the case on this branch of it, but for the court telling the jury to consider the custom. We think it legitimate for the jury to consider the question of effort made by the assured to give the notice by notifying Levi, and we think the evidence on that subject was properly admitted. For that reason then we are not satisfied that it is erroneous. We are satisfied that the court’s charge as to custom is erroneous.

Another defect set up is that the provision of the policy in lines 86-91, both inclusive, were not complied with. That reads:

“In the event of disagreement as to the amount of loss the same shall, as above provided, be ascertained by two competent and disinterested appraisers, the insured and this company each' selecting one, and the two chosen so shall first select a competent and disinterested umpire; the appraisers together shall estimate and appraise the loss then, stating separately sound value and damage, and failing to agree, shall submit their differences to the umpire, who shall make an award in writing. The parties thereto shall pay the appraiser respectively selected by them and shall bear equally the expenses of the appraisal and umpire.”

No appraisement was ever had. But we do not think that should defeut a recovery if the assured, under the circumstances of this case, on September 17, did give notice of this loss. No attention was paid to that by the company, so far as appears, until October 26, when the company wrote him that the first'they knew of his loss was when they received proofs of loss made on October 16. The company was mistaken; they knew on September 17, but no attention was paid to it until October 26, ten days after the proofs were made out. Then correspondence back and forth went on for a few days, before they wrote and answered on November 15, denying all liability.. They did not suffer for want of appraisement. They paid no attention to the notice which the jury found sufficient, for there was a special finding by the jury that the notice was sufficient, and then they did not take the matter up as to whether the loss was great or little.

It is with regret that we reverse this judgment. The defect is a technical one, but it is one under the law the company may make, and for the error indicated, and for no other, the judgment is reversed and the cause remanded to the common pleas court.

Hale and Winch, JJ., concur.


text:
    PLEADING — PRINCIPAL AND AGENT — TRIAL
    [Cuyahoga (8th) Circuit Court,
    November, 1903.]
    Hale, Marvin and Winch, JJ-.
    Godfrey Fugman et al v. A. Trostler et al.
    1. Action upon Express Contract and upon Quantum Meruit not Inconsistent.
    An action upon an express contract for real estate commissions and a second cause of action set forth in the same petition, based upon the same transaction and in which recovery upon a quantum meruit is sought, are not inconsistent and the court may, in its discretion, overrule a motion to compel plaintiff to elect between them.
    2. Dual Agency as Defense Specially Pleaded.
    Dual agency as a defense can not be shown under a general denial, but must be specially pleaded, and when so pleaded the burden of proof is upon the defendant to establish it.
    3. Instructions Directing Jury to Use Sense of Fair Play, Held Misleading.
    A charge to the jury which directs them to use their sense of fairness, fairplay and good conscience, and not be influenced by anything, but a desire to do what is right and fair between the parties, is misleading, when no reference is made to the law and facts in the case.

      White, Johnson, McCaslin & Gcmnon, for plaintiffs in error.

      ■E. H. Bushnell and J. C. Hutchins, for defendants in error.
   WINCH, J.

A. Trostler was plaintiff below and brought his action against Godfrey Fugman, Anna L. F. Fugman and O. C. Ringle & Co. to recover commissions for the sale of real estate. The amended petition contains two causes of action. The first cause of action alleges that the Fugmans were the owners of certain real estate and O. C. Ringle & Co. their agents for its sale. That Trostler represented to them that he could procure a purchaser for them if they would pay him one per cent, commission on the sale, whereupon the following agreement was entered into between the parties:

‘1 Cleveland, 0., April 1, 1901.
“It is hereby agreed by and between Godfrey Fugman, O. C. Ringle & Co. and A. Trostler, that in consideration of services rendered as agent in negotiating sale and transfer of the Fugman property at the corner of Wade Park and Dunham avenues to John Schaber, said A. Trostler shall receive as his share of the commission one per cent, of the selling price of said property.
“O. C. Ringle.
“Godfrey Fugman.”

Plaintiff further alleges that said Godfrey Fugman was authorized to enter into said contract by his wife, Anna L. F. Fugman and signed the same in her behalf as well as his own, and that O. C. Ringle did the same in behalf of O. C. Ringle & Co.

Plaintiff then alleges that he procured said John Schaber to purchase said property for $54,000; that it was conveyed to Schaber for said price; that he had demanded his commission which had not been paid, although the defendants Fugman had paid to Ringle & Co. a portion of said commission due plaintiff under said contract but not all.

The second cause of action recites substantially the same facts as are set out in the first cause of action, except that it makes no reference to the express contract dated April 1, 1901, and concludes with an averment that the fair and reasonable value of plaintiff’s services is not less than $540.

The prayer of the amended, petition is for judgment in the last named amount.

The answer of the Fugmans admits the making of the contract with Trostler, dated April 1, 1901, but states that at the time said contract was made they were asking $60,000 for their property; that Schaber refused to buy at that price and the written contract for.commission was thereupon rescinded by all the parties to it. That afterwards, Trostler, acting as agent for Schaber, and not .otherwise, offered to buy said property for $54,000, and thus initiated new negotiations which were conducted on the part of Schaber by Trostler, acting as his agent, and a sale was finally made at that price. That the latter negotiations had no reference to the first negotiations in which Trostler was to induce a sale by the Fugmans at $60,000, the later negotiation being carried on by Trostler as the agent of Schaber exclusively, to induce the Fugmans to sell for $54,000, without any promise, express or implied, from the Fugmans, to pay any commission whatever.

The answer of O. C. Ringle & Co. adopts the answer of the Fugmans and further states that they have received no part of the commission claimed to be due Trostler.

It will be noticed that the two causes of action set out in the amended petition refer to the same transaction, the first pleading an express contract and the second seeking to recover on a quantum meruit. At the trial defendants moved that plaintiff be compelled to elect upon which cause of action he would rely. This motion was overruled, and the overruling of said motion is assigned as one of the errors in the trial of the case.

The two causes of action were not inconsistent and it was within the discretion of the court whether the plaintiff should be compelled to elect between them. Ware v. Reese, 59 Ga. 588; Wagner v. Nagel, 33 Minn. 348 [23 N. W. 308]; Manders v. Craft, 3 Colo. App. 236 [32 Pac. 836]; Longprey v. Yates, 39 N. Y. (31 Hun.) 432; Evans v. Habfleisch, 36 N. Y. Supr. Ct., 450; Packard v. Reynolds, 100 Mass., 153; Wilson v. Smith, 61 Cal., 209; Cowan v. Abbott, 92 Cal., 100 [28 Pac. 213]; Globe Light & Heat Co. v. Doud, 47 Mo. App., 439.

Again it is claimed that the court erred in ruling on evidence, but the record shows no prejudicial error of that nature.

Very serious criticisms are made by counsel for plaintiff in error of the charge of the court. Counsel for Ringle & Co. criticise the conversational style of the charge, and the recital of testimony by the court, objecting that the court made itself the purveyor of the testimony to the jury, and that the closing part of the charge, while a beautiful homily, is not good law. Admitting the merit of much that has been urged against the charge, we have examined it with reference to the facts proved in the case to see whether the defendants below were in any manner prejudiced by the charge of the court as given.

As to the recital of the evidence to the jury by the court:

We think the court fairly stated what the witnesses on both sides had testified and that in this respect the charge comes within the rule laid down in the case of Morgan v. State, 48 Ohio St. 371 [27 N. E. 710], in which it Avas held that it was not improper for the trial judge to sum up the evidence, if it is fairly done.

Again, the court used the following language:

“He (the plaintiff) says: ‘I ought to receive it; I sold this property. This contract says I was to have one per cent, commission upon the selling price of this property; I sold it; there is no denial of that, and I am entitled to my five hundred and forty dollars.’ ”

This, we are inclined to believe, was a colloquial AA'ay of referring to the allegations of the petition; if it referred to the evidence it may fairly be said that the record shows no denial that the plaintiff sold the property. The language used was unfortunate, but upon a careful examination of the Avhole case we do not think it was misleading.

It is urged that the court erred in charging the jury that the burden was upon the defendants to prove that the plaintiff was acting as agent for Schaber as well as for them. The dual agency was properly pleaded in the answers. It has been held that the double agency can not be shown under a general denial. MacFee v. Horan, 40 Minn., 30 [41 N. W. 239]; Reese v. Garth, 36 Mo. App., 641; Childs v. Ptomey, 17 Mont., 502 [43 Pae. 714]; Duryea v. Lester, 75 N. Y., 442.

Such being the law, it follows that the burden was upon the defendants to prove that plaintiff acted also as agent for the purchaser.

That part of the charge which has given us the most difficulty is the concluding words of the court, as follows:

“This is a matter now in which, as in all matters in court, you want to use your judgment, your sense of fairness, fair play and good conscience and not be influenced by anything but a desire to do what is fair betAveen these people. ’ ’

We had supposed that juries were to be influenced only by the facts as they may find them and the law as the court may give it to them, but counsel for defendant in error has reminded us that if a jury doesn’t use its judgment, sense of fairness, fair play and good conscience, and doesn’t show a desire to do what is fair between the parties, its verdict is at once set aside by all courts.

The trouble with the language used in this case is that it is misleading; the whole case is left to the jury to decide between the parties without reference to the law or the facts. They werd mislead in at least one important respect in this case, the verdict is too large.

While we are satisfied that the plaintiff proved a meritorious claim against the defendants, the verdict does not disclose whether the jury based its verdict upon the express contract of April 1, 1901, set up in plaintiff’s first cause of action, or the implied agreement pleaded in his second cause of action. There is evidence therefore to sustain the verdict, but the recovery could not have been under the agreement of April 1, stipulating a straight one per cent, on the selling price.

We are satisfied that by mutual consent of all parties that agreement, when the selling price of the property was reduced was modified to one-half of the usual broker’s commissions, testified in the ease to be two per cent, on the first $10,000 and one per cent, on the balance.

The verdict therefore should not have exceeded the sum of $320 with interest from June 7, 1901, amounting in all to $350.

If defendant in error, Trostler, will remit all of his judgment in excess of that amount, the judgment will be affirmed.

Hale and Marvin, JJ., concur.


text:
    FORTUNE TELLING
    [Cuyahoga (8th) Circuit Court,
    February 8, 1904]
    Marvin, Winch and Hale, JJ.
    Lena Wolf v. State of Ohio.
    Pretending to be Spirit Medium not Violation of Law, against Fortune Telling.
    A representation that the accused is a spirit medium, made to one person only, does not constitute a violation of Sec. 7017-4 R. S. (Sec. 13145 G-. C.), making it a misdemeanor for one to represent himself to be an astrologer, a fortune teller, a clairvoyant or a palmister.

      Ilart, Canfield & Croke, for plaintiff in error.

      City Solicitor, for defendant in error.
   MARVIN, J.

This is a proceeding in error to reverse the judgment of the court of common pleas and the police court of the city of Cleveland. The judgment in the police court was a judgment of conviction, and that was affirmed by the common pleas court.

The prosecution of Lena Wolf before the police court was undertaken under Sec. 7017-4 R. S. (Sec. 13145 G. C.), and that section, so far as applicable here, reads:

“Whoever shall represent himself to be an astrologer, a fortune teller, a clairvoyant or a palmister, shall be guilty of a misdemeanor,” etc.

The ease has some curious features about it. It involves, among other things, the question of what is meant by “represent” and what is meant by a “fortune-teller.”

The information reads that—

“One Lena Wolf, late of said city of Cleveland, on December 3, in the year aforesaid” (and there seems to be no aforesaid year mentioned), “in said city and county did unlawfully represent herself to be a fortune-teller to one James Dolan.” It will be observed that, so far as this information charges, she made no representation to any one but to one person, James Dolan, that she was a fortune-teller, and this is the way she made the representation: “By then and there pretending to have the power to reveal future events in the life of him, the said James Dolan, in the following manner, and in substance, to-wit: By then and there seating herself upon a chair opposite to a chair occupied by him, the said James Dolan, facing a small wooden table.” (So far there is no representation that she is a fortuneteller ; so far she could do all that without making any pretense of being a fortune-teller.) “She, the said Lena Wolf, then and there passing the palms of her hands over and across the top of said table, and then and there pretending to place herself in a tranced condition” (up to this point, so far as appears, she made no representation of being a fortune-teller); “and while pretending to be in said tranced condition to clasp the right hand of said James Dolan, and then and there saying to said Dolan, in substance, the following: ‘You are going to change your business before the first of the year and next spring. ’ Now to that extent there seems to be a fore-telling of a future event; but if h required any kind of mystic help to say to one he is likely to change his business, it seems a little strange. Indeed I suppose it would not be regarded as fortune-telling for any one to say ‘ Í do not think you will continue in the business in which you now are.’ She then said, ‘You must not be afraid to go into this, Big Chief. You will make lots of money.’ There is the fore-telling of something. Suppose she had said, ‘You will lose money.’ I suppose most of us would be safe in telling our acquaintances: ‘You are likely to lose money, or are making money,’ without really being charged with representing ourselves to be fortunetellers. ‘You will have a partner; you are afraid of him, but he is all right. I see a gold field; lots of gold. You have an interest in this gold field.’ So far there is no fore-telling of future events in this regard. ‘You are going there but Big Squaw does not want you to. I am a little rosebud in the spirit land that is talking. You are the Big Chief.’ Contrary to the form of the statute in such cases made and provided and against the peace and dignity of the state of Ohio.”

Now if there is any charge of crime in that information we are unable to see it. We think that a demurrer to that information, or a motion to quash should have been sustained. It is too ridiculous a thing to found a charge of crime upon. The statute itself is bad enough to make it an offense to represent one’s self to be a fortune-teller, a palmister, a clairvoyant or an astrologer, but clearly it was not the understanding of the makers of that statute that because a person says to another person “I can read your palm, or I am a spirit medium and have communication,” to charge him with being a fortune-teller.

The statute provides that one may be licensed. It seems clear that the term “fortune-telling” does not include all sorts of claims to mysterious power from the fact that it is allowed by the words “clairvoyant,” “palmister” and I think “astrologer” and this woman, the bill shows, had a card representing herself to be a spirit medium. Tt is easy to understand that good men and women should be glad to converse with those who have passed into the spirit land; but how any one would care to talk with an ignorant Indian girl because she is dead and can not use either English or any known Indian dialect, how it should deceive any one, is a very strange thing.

We think we should have to strain the statute very much to say the representing to a single person- — not making a public representation, not holding out that she was in the habit of telling fortunes — that she could as a spirit medium read something of one’s life, eonstiuted a representation that one is a fortuneteller. A definition of fortune-telling includes making a practice of foretelling of pretending to foretell future events. But the said Dolan, who had time in the performance of his duties as a police officer to call on her, and all she told him, was that she saw gold fields, and she thought he would get richer, and that she was a little rosebud.

A demurrer to this information should have been sustained. But when the facts were heard the court should have found there was no such representation, no holding out to the public, nor any such claiming even to one person that she made a practice of fortune-telling. It certainly was not the intention of the legislature to include every one who represented himself to be a spirit medium, else that would have been included in words. Spirit communications are held very sacred by some excellent people, but certainly not, I take it, the trash given out here about a rosebud, big chief and big squaw.

Judgment is reversed. The court of common pleas is reversed, and the police court as well. The proceedings will be dismissed.

Winch and Hale, JJ., concur.