author: Cushing, J.

text:
    DEFENSE OF PAYMENT IN AN ACTION ON A NOTE.
    Court of Appeals for Sandusky County.
    (■Shohl, P. J., Hamilton and Cushing, JJ., of the First District, sitting by designation.)
    Worst v. Colonial Savings Bank & Trust Co.
    Decided, June 20, 1919.

      Judgment — May Not be Entered on a Special Yerdiet, When — Amount Recoverable on Promissory Note — Must be Determined by Jury, and Not the Court, When — Proof of Payment of Note — Not Authorized Under a General Denial.

    1. In the absence of a general verdict, judgment should not be entered upon a special verdict unless the answers to the interrogatories submitted determine all the facts essential to the judgment, without reference to the testimony. (Fries v. Mach, 33 Ohio St., 52, distinguished.)
    2. On the trial of an action on a promissory note, where a general verdict is not returned and the jury fails to answer a special interrogatory as to the amount to be recovered by the plaintiff, the trial court is not authorized to calculate the sum due plaintiff on the face of the note and enter judgment for the amount thus arrived at, since under the provisions of Section 11455, General Code, it is the duty of the jury to determine the amount to be recovered.
    3. A general denial in an action on a promissory note does not authorize proof of payment.

      Frank O’Farrell and W. J. Mead, for plaintiff in error.

      D. B. Love, and U. O. DeRcm, for defendant in error.
   Cushing, J.

Heard on error.

The Colonial Savings Bank & Trust Company brought an action against J. W. Worst in the Common Pleas Court of San-dusky County, to recover a judgment on a promissory note executed and delivered by Worst to the bank. The petition was in short form under the code. A copy of the note, with all credits and endorsements thereon, was set out in the petition.

Worst interposed three defenses: A general denial, and the affirmative defenses that there was no consideration for the note, and that its execution and delivery were procured by false and fraudulent representations made by the bank.

On the trial of the cause, at the conclusion of all the testimony, a special verdict was requested and returned. The jury in the special verdict answered nine of the ten interrogatories submitted. The tenth interrogatory was: “If upon your verdict, the court should be of the opinion that the plaintiff is entitled to judgment, at what amount do you assess his damages ? ’ ’ This question was not answered.

January 24th, the jury deliberated and returned into court with the special verdict, which was received, filed, and the jury discharged. Defendant moved for judgment. At the time defendant excepted to the receipt of the verdict.

January 27th plaintiff moved for judgment.

January 31st motion for judgment for defendant, notwithstanding special verdict. Motion overruled. Defendant excepted.

Motion to set aside special verdict and for new trial overruled. Defendant excepted.

Judgment in favor of plaintiff on special verdict rendered in sum of $4,583.71, with interest from January 6, 1919, and costs of suit. Defendant to have statutory time for bill of exceptions.

It was stated in argument that the court calculated interest on the face of the note and thus arrived at the amount of the judgment. Plaintiff in error contends that the action of the court in referring to the note offered in evidence to ascertain the amount due and the dates from which the interest should be calculated did not constitute the entering of a judgment on the verdict as provided by law. Section 11465, G. C., provides as follows: “When by the verdict either party is entitled to' recover money from the adverse party, the jury must assess the amount of the recovery in its verdict.”

In the case of Niebling v. Laidlaw, 12 C. C. (N. S.), 463, the court in construing Sec. 5203, Rev. Stat., ■ predecessor of See. 11465, G. C., held that if there was a mistake in the amount assessed by the jury it should have been sent out again for further deliberation, and quotes with approval Claiborne v. Tanner, 18 Tex., 68:

“There can be no clearer principle than that: ‘Where a jury has intervened, and all the issues have been submitted to their decision, their verdict must constitute the basis of the judgment. The court can not look to the evidence on which the verdict is found, in order to determine what judgment to render, but must look alone to the verdict.’ ”

Defendant in error cites the case of Imperial Fire Ins. Co. v. Kierman, 83 Ky., 468, to support its contention that the court was correct in taking the face of the note and calculating the interest and thus arriving at the amount of the judgment. In that case, at page 480, the court say:

“The special verdict found that the parties had, 'by agreement through arbitrators, fixed the entire loss, and it found the amount so fixed. This was before the court. ’ ’

Clementson on Special Verdicts, page 224, states the rule to be:

“However clear and undisputed the evidence upon the issues not found, the court can not render judgment without usurping in part the functions of the jury, thereby infringing the right guaranteed by the Constitution and laws.”

The case of Fries v. Mack, 33 Ohio St., 52, is cited in support of the contention that this judgment should be upheld. In that case the jury found that the amount due was $7,000, that there were seven promissory notes of $1,000 each, dated February 2, 1860. “The verdict awards ‘interest from the date of maturity of the seven notes.’ ”

At page 61 the court say:

“The court found, from facts outside of the record, that the jury intended by their verdict to refer to certain notes, which 'had been offered in evidence upon the trial. Perhaps they did so intend, though the verdict does not say so. The facts found in regard to it are neither expressed nor necessarily implied in its language. Btut, even if it had been expressly stated in the verdict that the notes therein referred to were the same which had been offered in evidence, would it have been competent for the court to look to the evidence, or to any matter dehors the record, for the purpose of fixing that which it was the sole province of the jury to determine ? We think not. ’ ’

In the Fries case the petition stated an action on the trans-script of a judgment from the state of Kansas. The original action was based on the notes referred to and that were offered in evidence on the trial of the ease in the superior court of Cincinnati.

In the ease at. bar the petition sets out a copy of the note. The rate of interest is fixed in the note at 6 per cent. The principal sum bears interest from date, and provision is made in the note for interest at 6 per cent, after maturity on other sums. The jury did not find the amount due as in the Fries case, nor that the sum so found should bear interest, nor when the second computation of interest at 6 per cent, should commence: Whether the court looked to the petition, or to the note offered in evidence, the questions involved were such that the amount should have been left to the jury for its determination under the statute.

In the absence of a general verdict, judgment should not be entered upon a special verdict of the jury unless the answers determine all the facts essential to the judgment without reference to the testimony. Such special verdict can not be aided by intendment or by extrinsic facts. 38 Cyc. 1919; Farmers Savings Bank v. Burr Forbes & Son, 151 Ia. 627 (132 N. W., 59), and Spokane & I. E. Ry. v. Campbell, 217 Fed., 518. See also Bullock v. Mitchell, 16 Bull. 354 (9 Dec. 687).

It is contended that the court was in error in submitting interrogatories 5, 6 and 7 of the special veriet to the consideration of the jury. In the absence of a bill of exceptions, we are unable to pass upon that assignment of error. From the answers, and answers to interrogatories 8 and 9, it would seem that the case was tried on the theory that the general denial put in issue the question of payment of the note or of partial payments.

The answer of the defendant below does not plead payment. Payment of a promissory note is an affirmative defense. Margeson v. Kellar, 12 C.C.(N.S.), 496.

A general denial in an action on a promissory note does not authorize proof of payment. The rule is that in actions which require allegations of demand and non-payment, such as an action on a lease or an account, plaintiff must plead and prove such issues. In an action where demand and non-payment are not essential allegations of plaintiff’s cause of action, as in an action on a promissory note, payment is an affirmative defense and must be specially pleaded and proved. Cochran v. Reich, 36 N. Y. Supp., 233; Guttermmn v. Schroeder, 40 Kans. 507 (20 Pac. 230); Melone v. Ruffino, 129 Cal. 514 (62 Pac. 93; 79 Am. St., 127), and Wolffe v. Nall, 62 Ala., 24.

Counsel urge that the motion of plaintiff and defendant for judgment on the special verdict brought the case within the rule of Beckel v. Ohio National Life Insurance Company, 15 N. P. (N.S.), 266, and Perkins v. Putnam Company (Comrs.) 88 Ohio St., 495. The rule of the cases stated is that where both the plaintiff and defendant at the conclusion of all the testimony move the court for an instructed verdict, such motions, in law, waive a trial by jury and submit both the questions of law and fact to the court. The motions in this case were made after the special verdict had been returned, filed and the jury discharged. There was presented the one question as to whether or not the court could ascertain from the special verdict returned by the jury the amount due and calculate the interest without reference to the evidence in the ease.

The judgment will be reversed and the cause remanded for a new trial.

Judgment reversed and cause remanded.

Shoi-il and Hamilton, JJ., concur.


source: Caselaw Access Project

author: Hamilton, J.

license: Public Domain

text:
    APPEAL FROM THE INDUSTRIAL COMMISSION.
    Court of Appeals for Hamilton County.
    Industrial Commission of Ohio v. Strassel.

    Decided, June 23, 1919.

      Industrial Commission — Rejection of Claim by — Appeal from — Statement by Injured Man to Physician Six Months After the Accident as to Cause of Injury — Inadmissible in Action on Account of the Inju/ry.

    1. In perfecting an appeal under Section 1456-90, General Code, the grounds for rejection of the claim by the Industrial Commission need "not be set forth in the petition.

      2. Where an injured party makes a statement to a physician concern ■ing the cause of the injury eight months after the accident happened, such statement is a mere narration of past events, is not a part of the res gesta, and is not admissible as evidence in an action for such injury.

      Louis H. Gapelle, Prosecuting Attorney, and Henry G. Ilauck, Asst. Pros. Atty., for plaintiff in error.

      Eli G. Frankenstein and George A. Hamma, for defendant in error.

       Motion for an order directing the Court of Appeals to certify its record in this case overruled by the Supreme Court, October 21, 1919.

   Hamilton, J.

Heard on error.

The action below was an appeal from the finding of the Industrial Commission of Ohio denying the right of the claimant, as the widow of ITenry Strassel, to participate in the state insurance fund. The trial of the cause resulted in a verdict and judgment for the plaintiff, and the Industrial Commission prosecutes error to this court.

The first specification of error goes to the question of whether or not the petition states a cause of action and to the jurisdiction of the court to try the cause. Plaintiff in error urges that the petition was insufficient to state a cause of action and to give jurisdiction to the trial court to try the cause, in that it fails to set up the grounds of the rejection of the claim, as found by the Industrial Commission.

■Section 1465-90, G-. C., gives a claimant who is denied the right to participate at all in the insurance fund the right of appeal, as follows: “On the'ground that the injury was self-inflicted or on the ground .that the accident did not arise in the course of employment, or upon any other ground going to the basis of the claimant’s right, then the claimant, within thirty (30) days after the notice of the final action of such board, may * * * appeal,” etc.

Tt will be observed that the statute conferring the right of appeal does so upon condition that final action of board denies the right of the claimant to participate at all in the fund upon one of the grounds therein enumerated.

It is averred in the petition:

“That the Industrial Commission of Ohio declined to allow appellant’s claim and informed appellant in writing on July 28th, 1916, of the disallowance; that thereupon the said Industrial Commission was asked to rehear the claim; that said claim was reheard and the former finding of the Commission disallowing said claim was approved and confirmed in writing, under date of November 21st, 1916.
“That in accordance with the provisions of Section 1465-90 G-. C., she has filed her appeal from the aforesaid final action of the defendants on the 12th day of December, 1916.”

While the language used in the statute is not adopted by the pleader, nor any of the grounds therein set forth specifically enumerated in the petition, she does aver that her appeal is prosecuted under the authority of the section above quoted. Great liberality is permitted in proceedings under the Workmen’s Compensation Law in order to carry out the spirit and intendment of that beneficent statute. We are therefore of opinion that facts sufficient to state a cause of action and to give jurisdiction to the court of common pleas are stated.

The second claim of error is that the court below erred in refusing to exclude the testimony of Dr. Wenning of statements by the decedent as to the cause of injury. It appears from the record that Dr. Wenning was permitted to testify to conversations between the decedent and himself in which the decedent narrated the circumstances relative to the cause of the alleged injury. It is claimed that the injury occurred in May or June, 1915, while the conversations and statements of the deceased as to the cause of the alleged injury took place in February, 1916, some eight months after the date of the alleged injury. The admission of this testimony was prejudicial error.

While the statements of a patient to a physician of his pain and suffering, and in regard to his present bodily and mental condition, to enable the physician to form an opinion of the extent and nature of his injuries, are competent, it is not competent for the physician to testify to the patient’s statements as to specife causes of injury, that being one of the issues before the jury.

In tire case of Lake Shore & M. S. Ry. v. Yokes, 12 C. C. (N.S.), —, the first paragraph of the syllabus is as follows;

“In an action to recover for injuries to the person, claimed to have been received in a railway collision, a physician who had been employed by the plaintiff to examine and treat her, can not be permitted to testify, as a witness in her behalf, to statements of the plaintiff as to the cause of such injuries, or that she attributed her condition to injuries received in such collision.”

In the above case of Lake Shore & M. S. Ry. v. Yokes, the authorities on these propositions are collated and elaborately quoted from by the court in the opinion, and it is unnecessary here to reiterate the authorities there cited, except to briefly mention them. The testimony of Dr. Wenning complained of is shown in the following answer:

“He said that he had previously — I forgot the exact time before — he had been lifting a heavy body, I think it was a truck body to place on a chassis or something, and that somebody had let go who had been lifting it with him, let go his end of it, and that he had to bear the whole brunt of it, and that he felt a great strain.”

This was a statement of a material fact and was used as evidence of that fact.

In the case of Bacon v. Inhabitants of Charlton, 61 Mass. (7 Cush.), 581, Justice Bigelow says at page 586:

“Where the bodily or mental feelings of a party are to be proved, the usual and natural expressions of such feelings, made at the time, are considered competent and original evidence in his favor. # * * There are ills and pains of the body, proper proofs in courts of justice, which can be shown in no other way. Such evidence, however, is not to be extended beyond the necessity on which the rule is founded. Any thing in the.nature of narration or statement is to be excluded, and the testimony is to be confined strictly to such complaints, exclamations and expressions as usually and naturally accompany, and furnish evidence of, a present existing pain or malady.”

Tn the ease of Inhabitants of Ashland v. Inhabitants of Marlborough, 99 Mass., 47, the court say:

“A physician’s testimony can not include a recital of past events which his patient made to him.”

In Roosa v. Boston Loan Co., 132 Mass., 439, it was held:

“The statement by a patient to his physician of the cause of an injury from which he is suffering, is inadmissible as evidence of that cause in an action for the injury.”

The authorities hold uniformly that a physician called to treat the plaintiff may not testify as to what the plaintiff said was the cause of the injury and that plaintiff attributed his present condition to such injury. The facts in this case with reference to the physician’s testimony are clearly within the rule, and the testimony as to the statements of Strassel as to how the injury occurred, which alleged injury had happened some eight months prior thereto, should have been excluded from the jury.

Counsel for defendant in error urge that the testimony of Dr. Wenning was admissible as a part of the res gestae, that although eight months had elapsed from the date of the alleged injury to the time of the statements to the physician a mere lapse of time would not prevent the statements of decedent from being a part of the res gestae. While it has been held that mere lapse of time alone is not a decisive test as to whether or not statements are a part of the res gestae, the evidence in this case was a* mere narration of past events and clearly hearsay evidence on the part of the physician, and in no way included such spontaneous exclamations, and was not so interwoven with 'the principal fact as to be regarded as part of the res gestae.

The motion for a new trial should have been granted.

The judgment will be reversed and the cause remanded for a new trial.

Judgment reversed and cause remanded.

Shohl and Cushing, JJ., concur.


author: Shields, J.

text:
    VIEWS OF VENIREMEN AS TO RECOMMENDATIONS FOR MERCY
    Court of Appeals for Stark County.
    Charles Burnett v. State of Ohio.
    Decided, September Term, 1917.

      Jury — Examination of Veniremen on Voir Eire in First Eegree Murder Oases — May he Questioned as to Their Vieios on Recommendation of Mercy.

    Inquiry by counsel for the state during examination of veniremen on their voir dire as to views which they may entertain as to recommending mercy if the evidence and the law require a verdict of murder in the first degree is proper for the purpose of ascertaining any bent of mind on the part of a venireman which might make him a fit subject for peremptory challenge.

      Brctucher & Sterling, for plaintiff in error.

      Frank N. Sweitzer, Prosecuting Attorney, and Thos. E. Leahy, Assistant Prosecutor, contra.
   Shields, J.

At the May (1917) term of the court of common pleas of said Stark county, the grand jury of said county returned an indictment against the plaintiff in error for murder in the first degree. Upon a plea of not guilty being entered, the plaintiff in error was tried upon said indictment and found guilty by a jury. Upon a motion for a new trial being overruled, the plaintiff in error was sentenced by said court to be electrocuted according to law. Error is alleged to have intervened in the selection of tlie jury for the trial of said cause, and for other alleged errors, for which a petition in error was filed to reverse said judgment of conviction and sentence.

"While said petition in error contains numerous assignments of error, the principal ground of alleged error relied upon and argued was that contained in the fourth ground stated in said petition in error and which is as follows;

“4. Said court erred in permitting the defendant in error to inquire of the jurors at the time the jury was impanelled of their views and opinions on the question of recommending mercy, and to which the plaintiff in error at the time excepted.”

In the exercise of a power conferred upon it by the Constitution guaranteeing and preserving to every person charged with crime the right of trial by jury, the Legislature of this state with a jealous regard for such right in capital cases has provided a scheme of legislation outlining various modes of procedure to be observed at each successive step taken in such cases from the time of the indictment of the accused to the close of the trial — all such legislation being enacted to secure to the accused a fair and impartial trial. In short, the law aims to afford to one thus charged its full measure of protection. Along the line of such procedure, it is provided that care and circumspection shall be observed in the selection of veniremen and to this end it is provided in the General Code as follows:

.“Section 13653. The following shall be good cause for challenging a person called as a juror on an indictment:
“First.' That he was a member of the grand jury which found such indictment;
“Second. That he has formed or expressed an opinion as to the guilt or innocence of the accused; but if a juror has formed or expressed such opinion, the court shall thereupon examine such juror on oath as to the grounds thereof, and if such juror says that he believes he can render an impartial verdict notwithstanding such opinion, and the court is satisfied that such juror will render an impartial verdict on the evidence, the court may admit him as competent to serve as a juror in such case;
“Third. In indictments for a capital offense, that his opinions preclude him from finding the accused guilty of an offense punishable with death.”

The remaining portions of said section are omitted for the reason that they have no application to the case before us.

It is further provided in Sec. 13654 G. C.:

“Challenges for cause shall be tried by the court on the oath of the person challenged, or other evidence, and shall be made before the jury is sworn.”

It will thus be seen that the selection of the jury is largely confided to the judgment of counsel for the accused and the state, under the direction of the trial court, who by express provision of the statute shall determine the qualification and eligibility of veniremen in a capital case.

The question made on the record before us is not that any such veniremen were challenged on the ground of a previously expressed opinion or preconceived notions of capital punishment, or on the suspicion of any prejudice against or partiality for either the accused or the state, or for any other known cause rendering such veniremen incapable or unfit to serve, except it is contended that said court erred in permitting counsel for the defendant in error to inquire of at least some of the veniremen on their voir dire as to the views entertained by them on the question of recommending mercy where the evidence and law required a verdict of guilty of murder in the first degree. The section of the code on which said indictment was predicated is as follows: ' ''

“Sec. 12400. "Whoever, purposely, and either of deliberate and premeditated malice, or by means of poison, or in perpetrating or attempting to perpetrate rape, arson, robbery or burglary,, kills another is guilty of murder in the first degree and shall be punished by death unless the jury trying the accused recommend mercy, in which case the punishment shall be imprisonment in the penitentiary during life.”

The constitutionality of this statute having been passed on, we are not here called upon to discuss that feature of it, whatever our views may be concerning the provision therein giving to the jury the right to recommend mercy in a first degree murder case, under a verdict of guilty, and especially since the jury in the case under consideration did not make any such recommendation. Referring to the record, it appears on page 6 thereof that one Albert Hurraw when called as a venireman into the jury box and after being interrogated by the state on the usual preliminary questions, including the question as to whether or not he was opposed to capital punishment, in a proper case, was cross-examined by counsel for the accused who asked him among others the following questions:

“Q. Have you any convictions or settled opinions on the question as to whether or not a jury if the evidence would warrant returning a first degree verdict, should or should not recommend mercy?
A. Well, that all depends on the jury.
Q. Well, I say have you any settled convictions to oppose or argue in favor of either one of those propositions?
A. No, I think not.
Q. You would then, as I understand you, take into consideration the evidence in the case upon that point?
A. Yes, sir.
Q. And you haven’t any feeling or prejudice upon that point, one way or the other?
A. No, sir; the evidence is all I go by m the case.
Q. I think that is all.”
“There being no challenge for cause the juror is directed to take his seat in the jury box and does take his seat in the jury box.”

It will be noticed that no inquiry whatever, either before or after the cross-examination of the venireman, was made on behalf of the state.

It appears that the next venireman called into the jury box was F. M. Frederick, who was asked practically the same question by counsel for the accused, on cross-examination, as asked by him of the preceding venireman and who answered that he had no opinion on the question of recommending mercy, and who in re-direct examination in substance reiterated such opinion. The question pertaining to a recommendation of mercy having been brought out and having been gone into on cross-examination by the accused, we know of no reason under the rules of evidence why the state should not be allowed to' cross-examine on the new matter thus brought out by the accused. Clearly we think the state had such right. The record further shows that this venireman, F. M. Frederick, was afterward challenged peremptorily by the accused. The answers of these veniremen, we think, furnish a full and complete answer to the contention made here on behalf of the plaintiff in error. As if appreciating the purpose of the inquiry made on behalf of the accused, it appears that they frankly and fairly, and no doubt truthfully, answered that in reaching a final conclusion in the ease they would be guided solely by the evidence and the law, each reserving to himself in the end the right to take counsel of his conscience and then under his obligation as a sworn juror decide whether under all the evidence in the case there should or should not be a recommendation of mercy. 3iist how one in favor of the death penalty, in a proper case, could safely say at the outset of a trial what his mental attitude would be on the subject of favoring a recommendation of mercy at the end of such trial, under a finding of guilty, we will not stop to discuss, except to say there may be cases wherein at the conclusion of the deliberations of a jury it might be thought that the extenuating circumstances appearing justify a recommendation of mercy. Here we think it clearly appears of record that the examination of the veniremen mentioned on their voir dire shows an entire absence of partiality in favor of or against a recommendation of mercy. But supposing such examination had disclosed a partiality in favor of such recommendation, would it not then have been claimed that it furnished a sufficient ground for challenge for cause ? It may be that it would, but whatever its effect, it appears that the answers to such inquiries were not made the subject of challenge for cause here by the accused and therefore it could not avail him after trial. Mangano v. State, 17 C. C. (N. S.), 595.

And it further appears here that while one of the veniremen thus inquired of as to his views of recommending mercy was peremptorily excused, as already stated, the other (Hurraw) was not so excused by the accused, although his right to further peremptory challenges under the statute was not exhausted before the jury was sworn.

As stated, the section of the statute cited provides that the trial judge shall be the trier of challenges for cause. All questions arising out of such challenges are to be passed upon and decided by such judge. He is clothed with the discretionary power to decide, and deciding, such decision is final, unless such exercise of discretion is manifestly abused. In Serviss v. Stockstill, 30 Ohio St., 418, it is held that:

“Where a party to an action challenges a juror on suspicion of partiality for the opposite party, the validity of such challenge must be determined by the sound discretion of the court. And where such challenge is sustained, the judgment rendered in the case will not, for that reason, be reversed, unless an abuse of such discretion is clearly shown.”

True, the foregoing was a civil action, but in Sub. 9 of said Section 13653 it is provided that “Like challenges shall be allowed in criminal prosecutions a,s are allowed in civil cases.”

Of the purpose of said Section 13653 it is not necessary to discuss. As already stated, it aims to give one charged with crime a fair and impartial jury. As applied to this case, one of the challenges for cause to a venireman (Sub. 2) is “that his opinions preclude him from finding the accused guilty of an offense punishable with death.” The statute (Sec. 12400) upon which the indictment is predicated reads ‘ Whoever * * * kills another is guilty of murder in the first degree, and shall be punished by death unless the jury trying the accused recommend mercy * * *.” Here it appears that the infliction of the death penalty and the recommendation of mercy are so closely - related in said section that inquiry as to one would readily authorize inquiry as to the other. Of course, if the result of such inquiry should afford a ground of challenge for cause, as already indicated, that would end the matter. The section referred to reads — “The court shall thereupon examine such juror as to the grounds thereof.” Under this section regulating the selection of jurors in a capital case, neither the accused nor the state is restricted to any prescribed forms of questions to be asked as furnishing challenges for cause, as in other jurisdictions; hence a wide range of inquiry is permissible for the purpose of ascertaining the extent to which the mind of a venireman is affected for or against either party. Keeping in mind, then, that the object of said section is to permit an examination of the venireman that will elicit his mental attitude bearing upon his qualifications to serve as a juror, what reasonable objection could be urged against inquiry being made as to the views of such venireman in respect to one of the provisions of said section upon which the crime charged is based, in view of the statutory duty imposed upon the trial judge as indicated? Not unlike the accused, the state is entitled to know in advance of the trial whether the jury being selected is to be composed of men who are fair and impartial and who having no conscientious scruples against the infliction of the death penalty will return a verdict in accordance with the evidence and the law, or whether it shall enter upon the trial with a prejudged verdict. Our judgment is that the rights of both the state and the accused in this respect are equal. While it is evident that the answers made to the questions put to said veniremen did not affect the legal rights of. the accused one way or the other, and hence no prejudice resulted to the accused, there still remains an additional reason, in our judgment, why the questions asked on re-direct examination of the venireman, were proper, and that is, in testing his qualifications, it was proper to thus inquire to ascertain whether or not such inquiry developed any bent of mind on the part of the venireman which might be deemed of sufficient importance to be taken advantage of in the subsequent peremptory challenges liable to be exercised. A discussion of this subject may be found in 1 Thompson, Trials, 2 ed. 'Secs. 101, 102 and 103 and wherein it is laid down that—

“Within reasonable limits, each party has a right to put pertinent questions to show not only that there exist proper grounds for a challenge for cause, but to elicit facts to enable him to decide whether or not he will exercise his right of peremptory challenge.’

For the foregoing reasons we hold that this ground of alleged error is not well taken.

Among other errors assigned is that the court below erred in admitting in evidence the alleged confession of the plaintiff in error. An examination of the bill of exceptions shows that every reasonable precaution was taken by the trial court, preliminarily, to ascertain its competency before admitting the same. That it was made voluntarily, without threats or promises and not induced by hope or fear excited in the mind of the accused, is furnished in the record that the same confession is to be found in the testimony of the accused himself when upon the witness stand as a witness in his own behalf. Spears v. State, 2 Ohio St., 584; Rufer v. State, 25 Ohio St., 464, 470; State v. Knapp, 70 Ohio St., 380.

We have examined the remaining assignments of error in said petition in error and find no substantial or prejudicial error to the plaintiff in error in the entire record. There is but one alternative left this court, therefore, and that is to affirm the judgment of the court below, however much we would prefer, if we could see our duty to do otherwise. We are moved to say this not because we believe that life would be rendered secure by a lax administration of the criminal law by condoning in any degree a crime like this, if committed under the influence of a long continued drunken debauch, but because the evidence upon the trial, furnished largely by the accused himself, tends to show either a selfassumed display of mawkish bravado, or a mind lacking in ’criminal responsibility. Of the former we are not concerned; of the latter, it is only necessary to say that it is apparent from an examination of the charge of the trial court that the jury were instructed at no little length on the resultant effect of the excessive use of intoxicants by the accused as affecting his legal responsibility as a free agent, but under this charge in its application to the evidence introduced upon the trial it appears the obligation of duty resting upon the jury required the rendition of an undivided and unqualified verdict of guilty. As a reviewing court, we can not do otherwise than approve the verdict.

The judgment of the court of common pleas will be affirmed, and said cause is remanded for execution.

Powell and TIouck, JJ., concur.


author: Dunlap, J.

text:
    INSURED PROPERTY DAMAGED WHILE DEED IS HELD IN ESCROW.
    Court of Appeals for Cuyahoga County.
    Peck v. Hale et al.
    Decided, February 7, 1919.

      Fire Insurance — Forfeiture Clause not Rendered Inoperative— By Sale of Property and Placing of Deed in Escrow — Insurance Money for Benefit of the Property — And for Benefit of Vendee upon Compliance with Terms of Escrow Agreement — Order for Payment of Insurance to Vendee Without Declaring A Trust not Erroneous.

    1. A sale of real estate had been made and the deed placed in escrow. While the deed was in the hands of the escrow agent the property was damaged by fire and the insurance money paid to the vendor, who, on demand,, refused to pay it to the vendee. Held: The insurance policy did not become void under the general forfeiture clause of the policy which provided that it should be void if a change took place in the interest, title or possession of the subject of the insurance.
    2. Payment by the insurance company was for the benefit of the property, and the money paid to the vendor is for the benefit of the vendee, providing the vendee complies with the terms of the escrow agreement.
    3. Upon compliance by the vendee with the terms of the agreement and payment of the purchase price to the escrow agent, who .delivers the deed to the vendee and the money to the vendor in the absence of any modification of the original agreement there is thereby implied a promise on the part of the vendor to pay over the money received from the insuranc company to the vendee, and the same may be recovered by proper proceedings.
    4 Even though the situation thus presented has ordinarily been regarded as one requiring the intervention of a court of equity to declare that the insurance money was held in trust for’ the vendee, yet when the allegations of the pleadings clearly reveal the foregoing situation to a court of legal and equitable jurisdiction, and no objection is made to the form of the suit or to the prayer of the petition, it is not error for the court upon motion made, to render judgment upn the pleadings in favor of the vendee for the amount of said insurance money.

      G. W. Toland, for plaintiff in error.

      J. Paul Thompson and Frank G. Scott, contra.
   Dunlap, J.

Heard on error.

"We shall state the conclusions at which we have arrived, and the reasons for the same, in our opinion in this case.

The pleadings show that a contract of sale of real estate had been made, and a deed executed in compliance therewith placed in escrow to be delivered to the vendee upon -compliance upon his part with the contract, namely, the payment to the escrow agent of the balance of the purchase price, the deed to be delivered to the vendee at the time said purchase price was delivered to the vendor, but during the time the deed was in escrow, and awaiting delivery, the property was damaged by fire and the fire insurance money was paid to the vendor, who refused to pay it to the vendee upon demand. We hold:

First. The insurance policy did not become void under the general forfeiture clause of the policy which provided that it should be void if a change took place in the interest, title or possession of the subject of the insurance, that being the usual form of forfeiture in the standard insurance policy in vogue in this state.

Second. If a loss from fire occurs during the period of time in which the deed is in escrow, and such loss is paid to the vendor, the same is for the benefit of the property and will be money paid to the vendor for the benefit of the vendee, providing the vendee complies with the terms of the escrow agreement.

Third. When, in the absence of any modification of the original agreement, the vendee has complied with the terms of said agreement and paid the purchase price to the escrow agent, who delivers the deed to the vendee and the money to the vendor, there is thereby implied a promise on the part of the vendor to pajr over the money received from the insurance company to the vendee, and the same may be recovered by proper proceedings.

Fourth. Even though the situation thus presented has ordinarily been regarded as one requiring the intervention of a court of equity to declare that the insurance money was held in trust for the vendee, yet when the allegations of the pleadings clearly reveal to a court of legal and equitable jurisdiction the foregoing situation, and no objection is made to the form of the suit or the prayer of the petition, it is not error for the court, upon motion made, to render judgment upon the pleadings in favor of the vendee for the amount of said insurance money.

AYe find no error prejudicial to the plaintiff in error in the record in this case, and the judgment will be affirmed.

Judgment affirmed.

Grant and AYashburn, JJ., concur.


text:
    DIVORCED WIFE WITHOUT DOWER RIGHTS IN AFTER ACQUIRED REALTY.
    Court of Appeals for Clermont County.
    Spaulding v. Spaulding et al.
    Decided, June 30, 1919.

      Dower — Real Estate Acquired by Husband after Divorce — Not Subject to Dower Rights of Former Wife — Decrees of Divorce Granted in Other States — Entitled to Full Faith and Credit.

    1. A wife is not entitled to dower in lands acquired by her husband subsequent to the termination of the marriage relation by the granting of a divorce to the husband.
    2. Under the laws of this state full faith and credit are given to a divorce decree of another state, and a transcript of it is admissible in evidence as proof of its rendition.

      H. 8. Stevenson, for plaintiff in error.

      H. E. Engelhwrdt, for defendants in error.
   Hamilton, J.

Heard on error.

Plaintiff claims dower as the widow of Chauncey P. Spaulding in certain real estate described in the petition.

The record discloses the following facts: In 1867, plaintiff intermarried with Chauncey P. Spaulding, and they lived together as husband and wife until about October 1, 1900, when they separated, the husband going to Indiana. The cause of the separation is not shown. The husband, prior to the separation, had gone to Indiana on business trips at different times, but had returned after short absences. He did not return to his wife after the separation in October, 1900. November 16, 1901, the husband was granted a divorce from plaintiff by the court of Madison county, Indiana. Service was made by publication. There was no personal service on the wife. The wife claims to have had no notice of the pendency of the suit for divorce. She admits she received a paper from Indiana October 16 or 17, 1901, stating a divorce had been granted Chauncey P. Spaulding. Since the divorce was not granted until November 16, 1901, the notice she received must have been the notice of the pendencjr of the suit, although this is not material to the determination of the question involved. At the time of the granting of the divorce, the husband was not seized of the real estate in question, but procured the title thereto several years after. The said Chauncey P. Spaulding died March 21, 1918, and plaintiff claims to- be endowed of the land's in question as his widow.

Under the law applicable to the case, it is clear that the Indiana decree could not affect the rights of the wife as to her dower rights in lands acquired during coverture, or held by Chauncey P. Spaulding at the time of the granting of the decree for divorce. Mansfield v. McIntyre, 10 Ohio, 28, and Doerr v. Forsythe, 50 Ohio St., 726 (35 N. E., 1055; 40 Am. St., 703). The divorce severed the marriage relation of the parties and is valid, excepting as to questions of alimony and dower in lands acquired during coverture or held at the time the decree for divorce was entered. Mansfield v. McIntyre, supra, and Cox v. Cox, 19 Ohio St., 502.

The question for determination therefore is: Is plaintiff entitled to dower in real estate acquired after the entry of the divorce decree?

In the case of Nichols v. Park, 79 N. Y. Supp., 547, 549, the court say: “With respect to land or an interest in land acquired by the husband subsequent to the divorce granted * * * terminating the marriage relation, no dower right could attach.” Citing In re Ensign’s Estate, 103 N. Y., 284, and Kade v. Lauber, 16 Abb. Prac. N. S., 288.

In the case of Kirkpatrick v. Kirkpatrick, 197 Ill., 144, 152 (64 N. E., 267), the wife procured a divorce for the aggressions of the husband, and no order was made affecting the dower of the wife. In that case the court held that the wife was entitled after the death of the divorced husband to dower in any land of which he was seized at the time of the entry of the decree of divorce.

A wife can have no dower in lands acquired by her husband subsequent to the termination of the marriage relation by divorce. 14 Cyc., 935.

Under the provisions of See. 11991, G. C., it is provided that where a divorce is procured by the wife for the aggressions of the husband, she shall be entitled to her right of dower in his real estate not allowed her as alimony, of which he was seized during coverture. It is therefore the law that plaintiff can have no dower in the real estate in question, the same having been acquired subsequent to the Indiana divorce severing the marriage relation.

Objection was made to the introduction in the trial of this case of the transcript of the decree of divorce granted by the Indiana court, counsel for plaintiff urging that the transcript of the decree of divorce was not admissible under the full faith and credit provisions of the constitution, citing as authority the case of Haddock v. Haddock, 201 U. S., 562 (50 L. Ed., 867; 26 Sup. Ct., 525). The ease of Haddock v. Haddock is authority for the proposition that the state of Ohio is not bound to give full faith and credit to the decision of the court of Indiana under the circumstances in question. Under the law of Ohio, this state does give faith and credit to such decisions to the extent of recognizing the validity of the divorce, even though it may not be forced to do so under the constitution.

The judgment will be affirmed.

Judgment affirmed.

Shohl and Cushing, JJ., concur.


author: Richards, J.

text:
    TITLE TO NOTE PURCHASED AFTER RECEIVERSHIP OF PAYEE.
    Court of Appeals for Cuyahoga County.
    Kinkade, Richards and Chittenden, JJ., of the Sixth District, sitting by designation.
    The Miller Brothers Star Shoe Co. v. Griffiths.
    Decided, May 12, 1919.

      Bills, Notes and Gheclcs — Purchase of Note After Receivership of Payee — Purchase in Good Faith and Without Notice of Infirmity— Title in the Purchaser Where the Receiver Never Had Possession.

    One who purchases of the payee in good faith by indorsement and delivery for value, before maturity, a negotiable promissory note without notice of any infirmity in the instrument or defect in the title, is a holder in due course, even though a receiver of the property of the payee had been appointed and qualified, the purchaser having no knowledge of that fact, and the receiver never having been in actual possession of the instrument.

      Turney, Olcls & Sipe and 1. N. Loeser, for plaintiff in error.

      Gaughan & Collins, contra.
   Richards, J.

Heard on error.

Griffiths commenced an action in the municipal court of Cleveland to recover on a promissory note for $500, executed March 12, 1918, by The Miller Brothers Star Shoe Company, payable in sixty days from its date to The Barry Brothers Company, or order. The trial resulted in a judgment in favor of the plaintiff, Griffiths, for the amount of the note and interest, and it is urged in this court that the judgment so rendered is against the evidence and contrary to law and should therefore be reversed.

The controlling facts in the case are not in controversy. The next day after the promissory note was executed and delivered to The Barry Brothers Company, the court of common pleas of this county appointed a receiver of that company, and the journal entry appointing the receiver directed him, upon being qualified, to take and keep possession of all the property of the company and hold the same subject to the further order of the court, and also directed that all persons having property in their possession or under their control, belonging to the company, should deliver the' same to the receiver. The receiver qualified on the date of his appointment and promptly demanded of The Barry Brothers Company, and the officials thereof, all property under their control belonging to said company.

On or about the 17th of March, 1918, David J. Barry, who was president and manager of The Barry Brothers Company, and who had full knowledge that a receiver had been appointed for- the company, endorsed and delivered the promissory note on which the action was based to William Griffiths, for full value, and the endorsee took the same without any knowledge that a receiver of said company had been appointed, and without knowledge of any defenses to said note. The record discloses that Griffiths was well acquainted with The Barry Brothers Company and had frequently transacted business of this character with them before that time. Under these circumstances this court is of the opinion that William Griffiths became a bona fide holder of the instrument in due course and is entitled to recover the amount thereof of the maker.

The matters in controversy in this case are covered in large part by various sections of the Negotiable Instruments Act, as found in Secs. 8135, 8156, 8157 and 8162, G.’ C., These sections provide in substance that the negotiation of an instrument of this character is effected by endorsement of the holder completecl by delivery, that payment to the holder in due course discharges the instrument, and the statute so defines a holder in due course as to include one who becomes the owner of an instrument under the circumstances shown by the evidence in this case, and authorizes such holder to enforce payment of the instrument against the parties liable thereon. While the receiver who was appointed in this case was authorized to take possession of all the property of the company, he did not, by the order of appointment, become invested with, the legal title to this promissory note, but the title to the instrument still remained in the original payee and the transfer of the note by endorsement of that payee for value, and, under the circumstances shown, passed to and authorized a recovery on the part of the endorsee.

As a general rule of law the maker of a note can not question the authority or capacity of the payee to make a transfer thereof. The principle is announced in substantially this language in 3 Ruling Case Law, 994, and in 8 Corpus Juris., 336, and is sustained by numerous authorities, the leading case being Drayton v. Dale, 2 Barn. & Cr., 293. The cases are collected in Bigelow on Estoppel, 495.

Merrick v. Merchants’ Nat. Bank, 11 Dec., 293 (8 N. P., 411), affirmed by the circuit court and by the supreme court in Merchants’ Nat. Bank v. Merrick, 67 Ohio St., 530 (67 N. E., 1094), without opinion, is not in conflict with the principles herein announced. That was an action brought by the receiver against the endorsee, and the court found that the bank, which had become the purchaser of the instrument, never had any previous dealings with the firm and had not taken ordinary precautions. There are further distinctions between that case and the one at bar, which we need not indicate.

We are not attempting in this case to decide what if any rights the receiver of The Barry Brothers Company may have with respect to this note.

For the reasons given the judgment wall be affirmed,

Kinkade and Chittenden, JJ., concur.


author: Pollock, J.

text:
    DIVORCE OBTAINED BY WIFE FROM NON-RESIDENT HUSBAND.
    Court of Appeals for Mahoning County.
    Chache v. Chache.
    Decided, May 28, 1919.

      Husband and Wife — Right of Wife to Acquire a Residence in Another State — Benefit of Divorce Laios Acquired by Her — Non-Resident Husband Bound by the Decree — Status of Such a Decree in other States.

    1. When a wife is justified in separating from her husband by reason of his aggression, she may lawfully select and acquire a residence separate from his.
    2. If the wife removes into this state and acquires a bona fide residence herein for the length of time required by our Code, she is entitled to the benefit of our divorce laws, although during all of the time she lived with her husband he was a resident of another state and continued to reside therein.
    8. Such a decree of divorce is binding within this state on both husband and wife, although the husband did not enter his appearance in the case and no service was had upon him other than by publication, as required by the Code in divorce proceedings.
    4. Such a decree of divorce is not entitled to obligatory enforcement in other states under the full faith and credit clause of the federal constitution, but it may be given such degree of efficacy therein under the principle of comity as their own conception of duty and public policy may require.
   Pollock, J.

This is an action prosecuted to reverse the judgment of the court of common pleas of this county in a case in which the plaintiff failed to recover a judgment of divorce from the defendant on the ground of extreme cruelty.

The plaintiff, in her petition, alleged that she had been a resident of the state of Ohio for more than one year last past; that-she was a bona fide resident of Mahoning county, and wrongful acts of the defendant toward her sufficient to authorize a divorce on the grounds of extreme cruelty.

Service was hal on the defendant under the statute of this state authorizing a summons upon a non-resident by publication. No personal service was had on the defendant, and he did not appear in the action.

The court of common pleas found that the plaintiff had left her husband in the state of Missouri, coming into the state of Ohio, and into Mahoning county more than a year prior to the filing of the petition, with the intention of making Mahoning county her permanent residence.

The court also found that the extreme cruelty of the husband towards the wife was sufficient to require that a divorce be granted her-under the statute of this state, but found that the marriage was consummated in the state of Missouri, where the - plaintiff and defendant resided from the time of the marriage until the separation, which was caused by the aggressions of the husband. After the separation the plaintiff came to this city; the husband remained in the state of Missouri.

. The court refused to grant the divorce on the ground that it did not have jurisdiction by reason of the marital residence of the wife being in the state of Missouri. These facts appear in the judgment of the court.

’ The only question then submitted to this court for determination is whether a woman who was married in another state, and resided in that state with her husband until her separation from him on account of his wrongful acts committed in that state, can. after residing in this state the time required by our code, maintain an action for divorce in this state when the only service had upon the husband is by publication.

Section 11980 of the General Code reads as follows:

“Except in an action of alimony alone, the plaintiff must have been a -resident of the state at least one year before filing the_ petition. Actions for divorce, or for alimony, shall be brdught- in the county- where the- plaintiff has a tona' fide resid£Üg,e\ut the,.time:of filing the petition, or in the county where the cause of action arose. The court shall hear and determine the case, whether the marriage took place, or the cause of divorce-occurred, within or without the state!...

Under the finding of the court, the plaintiff in ■ this action complied with all the conditions which are required to entitle her to a divorce under the statutes of this state. The court below held that a woman who was married and lived in another state during all the time that she had cohabited with her husband, could not obtain a divorce in this state, her' husband retaining his residence in that state and not being personally served or appearing in the case. ’

We are informed that the court based its decision on the principle announced by the Supreme Court of the United States, which will be referred to hereafter.

. The first question arises whether a married woman, who has resided during all of her married life rip to the time of the separation with her husband in another state which is the residence of her husband, can acquire a residence in this state, the 'lusband retaining his residence in the former state.

Under the finding of the court of common .pleas of this county, plaintiff had a right to separate from defendant by reason of his extreme cruelty -towards her.

When a married woman is justified in separating from b husband, his marital control over her which made his residence her residence is broken, and she can lawfully acquire an actual. residence separate- from his. She then has a right to select any place- for her residence that she may desire. If she came into this state and lived here the required time with the intention of making her home-herein, she. became a resident of this state, and can prosecute-an. action for divorce, notwithstanding.her husband remains in the state of their marital residence Harding v. Alden, 9th Greenleaf, 140 (23 Am. Dec., 549) ; Gordon v. Yost, 140 Fed., 79; Shute v. Sargeant, 67 New Hamp., 305 (36 Atl., 282.; Williamson v. Osenton, 234 U. S., 619 (58 L. Ed., 578).

The Supreme Court of the United States, in Sheever v.Wilson 9th Wall., 123 (19 L. Ed. 608), said:

“The rule is that she may acquire a proper domicil whenever it is necessary or proper that she should do so. The right springs from necessity for its exercise and endures as long as the necessity continues. ’ ’ •

When plaintiff was compelled to separate from the defendant because of his wrongful acts towards her, she could establish a residence of her selection, and if she came into this- state with that intention, she would establish a residence here.

We are informed that the court below refused to grant plaintiff a divorce on the authority of the case of Haddock v. Haddock, 201 U. S., page 562 (50 L. Ed., 867).

In that ease the plaintiff and defendant were married in the state of New York, where the wife had previously resided and where she continued to reside; that immediately after the marriage the parties had separated; that the husband had, after the separation, gone into the state of Connecticut and there without personal service or her appearance, obtained a divorce from his wife upon service by publication alone.

The Supreme Court in this case held that the divorce granted the husband in the state of Connecticut was not entitled to the protection of the full faith and credit clause of the Federal Constitution, but that the wife had a right to prosecute her action for divorce against the defendant in the state of New York, notwithstanding the prior divorce granted the husband in the state of Connecticut. The court did not hold that the divorce granted the husband in the state of Connecticut was not binding upon both parties in that state. On the other hand, it recognized the principle that the courts of Connecticut had a right, under the laws of that state, to grant to the husband a divorce which would be binding on both' parties within that state.

The court say in the syllabus:

“Without questioning the power of the state of Connecticut to enforce the decree within its own borders, and without intimating any doubt that the state of New York might give it such degree of efficacy that it might be entitled to in view of the public policy of the state, that the Connecticut decree, ren-. dered as it was witho'ut being based on personal service of the process on, and therefore without personal jurisdiction of the court over, the wife, was not entitled to obligatory enforcement in the state of New York by virtue of the full faith and credit clause of the Federal Constitution.”

And again—

“As a corollary to the power of the state, irrespective of any extraterritorial effect, any other sovereign may, under the principles of comity give to such a decree the efficacy which its own conception of duty and public policy may justify.”

The court in the ease above referred to do not limit the right of a state by authorized judicial proceedings to determine the status of a citizen towards a non-resident which will bind within the state all the parties to. the action, even if the non-resident defendant does not enter his appearance and no service has been had upon him except by publication. This principle was fully recognized in the case of Pennyroy v. Neff, 91 U. S., 714 (24 L. Ed., 565), where in the opinion, Fields, Justice, on page 434, says:

“To prevent any misapplication of the views expressed in this opinion, it is proper to observe that we do not mean to assert, by anything we have said, that a state may not authorize proceedings to determine the status of one of its citizens towards a non-resident, which would be binding within the state, though made without service of process or personal notice to the non-resident. The jurisdiction which every state possesses, to determine the civil status and capacities of all its inhabitants involves authority to prescribe the conditions on which proceedings affecting them may be commenced and carried on within its territory.”

This principle has been frequently recognized in divorce proceedings where the plaintiff has become a toña fide resident, of the state, although the marriage contract was entered into,' and the residence of the husband and wife, during all the time* that they lived together, was in another state, and the residence of the defendant has not changed. Tracy v. Tracy, 62 N. J. Equity, 807 (48 Atl., 533); Tolin v. Tolin (2d Blackford, 407), 21 Am. Dec., 742; Hubbell v. Hubbell, 5 Wis., 662 (62 Am. Dec., 702).

The Legislature of this state' has provided (Section 11980, General Code), that the courts of this state—

“Shall hear and determine the case whether the marriage took place or the cause of divorce occurred within or without the state. ’ ’

A resident of the state whose cause is authorized by the provisions of the section just referred to, has a right to insist that the courts of the state shall determine his legal rights by the laws of the state.

A divorce granted to a bona fide resident of this state is binding within the state on both the husband and wife although the marriage contract was entered.into in another state, and the wrongful acts' which authorized the divorce were also committed therein, even if the defendant is only served by publication under the statutes of this state.

It is true that such a judgment would not be entitled to. obligatory enforcement in other states under the full faith and credit clause of the Federal Constitution, but it may be given such degree of efficacy under the principles of-comity as their own conception of duty and public policy may require. Howard v. Strode, 242 Mo., 210 (146 S. W., 792); Felt v. Felt, 59 N. J. Eq., 606 (45 Atl., 105); Buckley v. Buckley, 50 Wash., 213 (96 Pac., 1079); Joyner v. Joyner, 131 Ga., 217 (62 S. E., 182).

The plaintiff in this case, under the finding of the court en tered in the judgment, was entitled to a divorce, and we think that the court should not have dismissed the petition, but granted her a divorce as prayed for.

The judgment of the court below is reversed, and remanded for further proceedings according to law.

Metcalfe, P. J., and Farr, J., concur.


text:
    REGULATION OF THE WEIGHT OF LOAVES OF BREAD.
    Court of Appeals for Lucas County.
    Toledo (City) v. Allion.

    Decided, December 24, 1917.

      Police Power — Regulation of Bakers — Minimum Weight of Loaves of Bread, May he Prescribed. ■

    A city ordinance, enacted to regulate the manufacture and sale of bread by bakers, and establishing one pound avoirdupois as the minimum weight of a loaf of bread that may be manufactured and sold by bakers, is not so unreasonable or arbitrary as to violate any constitutional provision.

      H. 8. Commager, director of law, and G. T. Lawton, for plaintiff in error.

      George A. Bassett, contra.

      R. S. Holbrook and C, R. Banker, amici curiae.

      Reversing Allion v. Toledo, 20 N.P.(N.S.), 353; judgment of the Court of Appeals affirmed by the Supreme Court, 99 Ohio State, 416.

   Richards, J.

Clara Allion, who is engaged in a small way conducting a bakery in the city of Toledo, was convicted in the police court of that city of the violation of an ordinance which fixes at one pound avoirdupois the minimum weight of a loaf of bread, which may be made or procured for the purpose of sale, sold, offered or exposed for sale in the city of Toledo. She prosecuted error to the court of common pleas, where the judgment was reversed, and the city brings this proceeding in error for the purpose of securing a reversal of the judgment rendered in the court of common pleas.

The validity of the ordinance is assailed on the ground that it contains more than one subject, and that it amounts to an unjust and arbitrary interference with the property rights of the defendant in error and is therefore unconstitutional and void.

The ordinance is entitled, “An ordinance regulating the size of the loaves of bread to be sold within the city o£ Toledo,” and it provides, in substance, that all bread made or procured for the purpose of sale, sold, offered .or exposed for sale shall be made in a clean and sanitary place and of good, wholesome flour or meal and shall contain no deleterious substance. The ordinance further provides that one pound avoirdupois shall be the standard loaf of bread, and that bread may be made or exposed for sale in one, one and one-half, two, two and one-half, three, three and one-half, four, four and one-half, five, five and one-half and-six pound loaves, and in no other way, and requires that every loaf shall have affixed in a conspicuous place a label of a given size and type, stating the weight of the loaf, marked in pounds, and the address of the baker. The ordinance further provides that the seller of bread shall keep on hand scales and weights suitable for the weighing of the bread, which shall be weighed in the presence of the buyer whenever requested by him. The ordinance by its terms does not apply to stale bread.

We do not think the ordinance is justly subject to the objection that the title does not contain all of the subject-matter placed in the ordinance. All matters covered by the ordinance are germane to the title of the ordinance as .set forth. Chittenden v. Columbus, 26 O. C. C., 531 (5 N. S., 84), affirmed without opinion, 71 Ohio St., 477 (74 N. E., 1134).

The chief objection made to the validity of this ordinance is that it forbids the manufacture or sale of bread weighing less than one pound per loaf. The evidence shows that the loaf of bread which the defendant sold, and which resulted in her prosecution, weighed eleven and three-fourths ounces. It further shows that she has been engaged in the making and sale of six-cent and twelve-cent loaves of bread. That the six-cent loaf weighed generally between eleven and eleven and one-half ounces and that the twelve-cent loaf weighed ordinarily twenty-one and one-half ounces. The record further shows that in the conduct of her business she made and sold many more of the six-cent loaves than she did of the twelve-cent loaves, and hence it is claimed that the ordinance in prohibiting the making or selling of a loaf weighing less than one pound unreasonably interferes with the conduct of her business.

Article 18, Sec. 3 of the constitution of Ohio, as amended in 1912, authorizes municipalities to exercise all powers of local self-government and to adopt and enforce such local police, sanitary and other similar regulations as are not in conflict with the general laws. The city of Toledo has adopted a municipal charter, which' provides in Chap. 2, Sec. 8, that the city shall have power to license and regulate persons, corporations and associations engaged in any lawful business, occupation, profession or trade. The city claims to have enacted this ordinance by virtue of the authority so vested in it by its charter adopted under the constitution.

The principle that municipalities have the authority to regulate the manufacture and sale of bread and fix the weight of loaves of bread has been announced in innumerable authorities found both in textbooks and judicial decisions. Indeed, the principle is so well settled that it could not be and is not questioned by counsel for the defendant. But it is said, and well said, that the ordinance regulating the manufacture and sale should be reasonable, and not arbitrarily interfere with the right of the individual. ■ It is contended that the provision in the ordinance under consideration forbidding the manufacture or sale of bread, when made into a loaf weighing less than one pound, is an unjust and arbitrary interference with the rights of the citizen.

In an investigation of the question under consideration we have been aided not only by oral arguments, but by briefs of counsel, which have carefully reviewed the authorities. After a somewhat extended examination we have not found the rules of law governing cases of this character better stated than in 11 Ruling Case Law, 1115, where, in a foot-note, most of the authorities are collected.

The ease of Chicago v. Schmidinger, 243 Ill., 167 (90 N. E., 369; 44 L. R. A. [N. S.], 632; 17 Ann. Cas., 614), is an important one bearing on the issue in this ease. It is said in argument that the Toledo ordinance is in the main a copy of the Chicago ordinance, but it is manifest that the two ordinances differ in at least one very important respect, namely, the Chicago ordinance fixed a pound avoirdupois as the standard weight of a loaf of bread, but authorized the manufacture and sale of bread in half, three-quarter, double, triple, quadruple, quintuple and sextuple loaves, while the Toledo ordinance forbids the manufacture and sale of any loaf weighing less than' one pound. Nevertheless the principles discussed by the court in the case just cited shed much light on the validity of the ordinance now under review. The ease ultimately found its way to the supreme court of the United States and is reported under the title of Schmidinger v. Chicago, 226 U. S., 578 (57 L. Ed., 364; 33 Sup. Ct., 182).

There is undoubtedly in Toledo, as shown by the record in this ease, a demand for bread of a weight less than that fixed by this ordinance. But it was said in the Schmidinger case that there was a considerable demand in Chicago for bread in weights differing from those fixed by the ordinance, and the fact of that demand was held not to be sufficient to invalidate the ordinance, which was sustained by the Supreme Court of Illinois and by the Supreme Court of the United States.

Of course it is manifest that mere inconvenience in complying with the terms of an ordinance fixing the weight of bread is not sufficient to justify a court in holding the ordinance void. We suppose the rule to be well settled that city councils, rather than the courts, are entrusted with the regulation of these matters, that the local authorities are primarily the judges of the necessity calling for the legislation, and that the courts are powerless to interfere unless the regulations are so arbitrary as to be in excess of any reasonable exercise of authority.

Mir. Justice Day, in delivering the opinion of the supreme court in the Schmidinger case, quotes the following from Gundling v. Chicago, 177 U. S., 183, 188 (44 L. Ed., 725; 20 Sup. Ct., 633); “Unless the regulations are so utterly unreasonable and extravagant in their nature and purpose that the property and personal rights of the citizen are unnecessarily, and in a manner wholly arbitrary, interfered with or destroyed without due process of law, they do not extend beyond the power of the State to pass, and they form no subject for Federal interference. ’ ’

The rule is well stated, in language nearly parallel to this, in 12 Corpus Juris. 932.

A conviction under a bread ordinance adopted by the city of Detroit, fixing the weight of loaves of bread at one pound, two pounds and four pounds avoiirdupois weight, and forbidding loaves of any other weight, was sustained in the People v. Wagner, 86 Mich., 594 (49 N. W., 609; 13 L. R. A., 286; 24 Am. St., 141). The Detroit ordinance in this vital particular was identical with the one adopted in the city of Toledo, under which the defendant is prosecuted.

It was held in State v. Huber, 27 Del. (4 Boyce), 259 (88 Atl., 453), that an enactment prohibiting the sale of bread by the loaf weighing less than one pound avoirdupois is a proper exercise of the police power and not unconstitutional for unreasonableness as abi’idging the privileges and immunities of citizens.

Similar decisions have been rendered in the province of Ontario in two cases: In re Nasmith and the Corporation of the City of Toronto, 2 Ontario Rep., 192, where the minimum loaf was fixed at one pound, and Rex v. Chisholm, 14 Ontario Law Rep., 178, where the minimum weight of the loaf of bread was fixed by the ordinance at one and one-half pounds.

See also the following authorities: State v. McCool, 83 Kans., 428 (111 Pac., 477), and State v. Armour & Co., 27 N. Dak., 177 (145 N. W., 1033; 1916E L. R. A. [N. S.], 380; 1916B Ann. Cas., 1149), affirmed by the Supreme Court of the United States, 240 U. S., 510 (36 Sup. Ct., 440).

The latter ease was a prosecution for the violation of a statute requiring every lot of lard or lard compound, unless sold in bulk, to be put in pails or other containers holding one, three or five pounds, net weight, or some multiple of those numbers. The statute did not prohibit the sale of lard in bulk in any quantity.

Our attention has been called to but one case which reaches a conclusion contrary to the authorities already cited. We refer to Buffalo v. Collins Baking Co., 57 N. Y., Supp., 347, where it was held that an ordinance regulating the weight of baker’s bread is void as being an unreasonable invasion of the right to engage in a lawful business. It is manifest that this decision is clearly contrary to the great weight of authority and not in accordance with the reasoning of either the courts or the authors of textbooks on the law. We are the less impressed with this authority by reason of the fact that the Supreme Court of New York had theretofore held in the ease of Paige v. Fazackerly, 36 Barb. (N. Y.), 392, 394, that there is no doubt that a city ordinance i'egulating the weight of bread is a valid police regulation.

It may be noted that the ordinance of the city of Buffalo, which was held invalid in the ease of Buffalo v. Collins Baking Co., supra, fixed the minimum weight of a loaf of bread manufactured for sale by any baker at one and one-half pounds.

We are forced to the conclusion that the city council was primarily the judge of the necessity of enacting this ordinance and that this court can interfere only when it shall appear that the ordinance passed in pursuance of the police power is so arbitrary as to be palpably and unmistakably in excess of any reasonable exercise of that power. While it is evidently true that compliance with this ordinance will work some hardship on the defendant, and others similarly situated, yet we can not find that the ordinance is beyond the exercise of the legislative discretion vested in the city council, nor that it is so unreasonable and arbitrary an exercise of the police power as to be void. In reaching this conclusion, however, we wish to say that in so far as the ordinance prohibits the baking and sale of bread in loaves weighing less than one pound, and in particular in not allowing half-pound loaves, it does not appear to be a wise exercise of the legislative power vested in the city. The record in this ease discloses that not only the defendant in error, but others similarly situated, and many citizens of the city of Toledo, would be accommodated if the ordinance should permit the manufacture and sale of a loaf weighing as little as one-half pound. If the ordinance permitted a loaf weighing one-half pound the enactment would be beyond criticism and far more satisfactory to the members of this court.

In this connection, however, we call attention to the language of Mr. Justice Harlan, as found in Powell v. Pennsylvania, 127 U. S., 678, 686 (32 L. Ed., 253; 8 Sup. Ct., 992, 1257):

“If all that can be said of this legislation is that it is unwise, or unnecessarily oppressive to those manufacturing or selling * * * an article of food, their appeal must be to the legislature, or to the ballot-box, not to the judiciary. The latter can not interfere without usurping powers committed to another departmet of government.”

Certainly Mr. Justice Harlan did not undertake to say, nor do we say, that the city council may exercise power in this respect either arbitrarily or capriciously.

The Supreme Court of Illinois said in Chicago v. Schmidinger, 243 Ill., 167, 174, supra: “The courts have nothing to do with the wisdom of this ordinance. That question rested entirely with the city council of the city of Chicago. While its provisions may be drastic, we do not think the ordinance is unconstitutional or that it is unreasonable and therefore void.”

While the ordinance adopted by the city of Toledo does not meet with the approval of this court, in so far as it prohibits the manufacture and sale of bread weighing less than a pound, it is not so arbitrary or unreasonable as to be unconstitutional and void, and is within the police power vested in the city authorities.


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    CONTRACTS FOR THE SALE OF REAL ESTATE.
    Court of Appeals for Cuyahoga County.
    Halliday v. Diehm.
    Decided, February 7, 1919.

      Option on Heal Estate — Holder Can Not Maintain Suit Against Third Party for Breach of Contract — Where Deed Has Not Been Tendered.

    A party wbo bas no title to a certain piece of real estate, but bolds merely an option thereon, given without consideration, by entering into a contract for the sale of such property to a third party, does not thereby obtain such rights that upon prompt repudiation of the contract by such third party he may, without tender of a deed and without acquiring any title to such property,' sue and recover from such third party damages as for a breach of such contract.

      Heed, Meals $ Mchelberger and Turney, Olds & Sipe, for plaintiff in error.

      Squire, Sanders & Dempsey, contra.
   Dunlap, J.

Heard on error.

AYe think that in the final analysis the sole question for our determination in this case is:

. “Can a person who has no title to a certain piece of real estate, and who has merely an option to buy the same, given without consideration, by entering into a contract with a third party for the sale to such third party of such property thereby obtain such rights that upon prompt repudiation of the contract by said third party he may without tender of a deed and without ever acquiring any title to the property sue and recover from the third party damages as for a breach of said contract ? ’ ’

No authorities are cited to us which we regard as maintaining the affirmative of this proposition. AYe are familiar with the general holding that the owner of property need not upon absolute refusal of a person with whom he has made a binding contract of sale, do the vain and useless thing of tendering a deed or other performance, but the basis for this holding is the readiness, willingness and ability to perform. Then tender or performance is executed because of its uselessness. The proof of ability to perform, coupled with' an expressed willingness, and the absolute refusal of the other party, are sufficient to make out the case. But the refusal alone, without proof of ability, readiness and willingness, or without proof of tender or performance, will not make out a case. This, we believe, is in accordance with the most fundamental principles of the law of contracts. We think it is fundamental that before a party to an executory contract can recover for a breach he must prove his own readiness, willingness and ability to perform his part of the contract. Such showing of readiness, willingness and ability is not excused by a mere proof of a repudiation of the contract by the other party, upon the theory that this showing would be a vain thing. It is only the tender of performance when the other elements are present that constitutes the vain thing.

Any other holding than this would, we think, be against both public policy and good morals. Any impecunious but plausible person with ability simply to obtain colorable options could make contracts for the sale of almost any property and take the gambler’s chance that always exist that before the day for the completion of the transaction either the other man would “back out,” thereby relieving him from any embarrassing disclosures and giving him an opportunity for a lawsuit, or that he might be able to induce the owner to carry out the terms of his daring contract from which he might reap possible profits. Tn either event he would have undertaken to perform with certainty something then out of his power to perform, and which only good fortune could enable him to perform. Shall he, under such circumstances, be permitted to recover under his contract, simply upon proof of its repudiation by the other party, without proof of any tender of performance upon his part ?

This court is unanimously of the opinion that such is not the law. In our opinion the covenants in the contract in this case were mutual covenants or provisions, and the proof is insufficient unless it reveals a tender of performance upon the part of the plaintiff. Until such time there is no breach of the contract of which he can take advantage.

That this is the law seems to us. to be clearly indicated by the very early cases of Webb v. Stevenson, 6 Ohio, 283, and McCoy’s Admrs. v. Bixbee’s Admrs., 6 Ohio, 310 (27 Am. Dec., 258), apparently followed in the more recent case of Raudabaugh v. Hart, 61 Ohio St., 73 (55 N. E., 214; 76 Am. St., 361). It is also the doctrine of the text-books. Thus in 39 Cyc., page 1983, the law is stated as follows:

“A vendor, in order to recover for a breach of contract by the purchaser, must himself have been able and ready to perform his part of the contract * * *. Notwithstanding the circumstances may be such as to obviate the necessity of an actual tender or offer of performance, this fact does not dispense with the necessity of an ability and readiness on the part of the vendor to perform.”

Again at page 2095, 39 Cyc., it is said:

“The complainant must allege or show an ability and willingness on the part of plaintiff to perform his part of the contract, even where an actual performance or tender is unnecessary; and where an actual performance or tender is a condition precedent, it must be alleged, it not being sufficient in such cases to allege merely a readiness and willingness to perform.”

Applying what we think are the fundamental principles of the law of contracts to the facts in the ease at bar, we reach the conclusion that the judgment of the court below should be affirmed.

■Judgment affirmed.

Grant and Washburn, JJ., concur.


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    ALIMONY NOT BARRED BY ANTE-NUPTIAL CONTRACT.
    Court of Appeals for Cuyahoga County.
    Kennedy v. Kennedy.
    Decided, May 12, 1919.

      Divorce and, Alimony — Ante-Nuptial Contract Providing for Support During Coverture Only — Not a Bar to Recovery of Alimony, When.

    Where an ante-nuptial contract provided for the support of the wife by the husband during coverture and that if they should cease to live together as husband and wife she should not have any interest in the property owned by him at the time of the marriage, and the husband was guilty of such gross neglect of duty as amounted to an utter failure to perform the contract and resulted in the wife being granted a divorce from him, she is not barred by the ante-nuptial contract from being awarded reasonable alimony.

      Kerruish, Kerruish, Hartshorn & Spooner, for plaintiff in error.

      Eugene Quigley, contra.
   Richards, J.

Heard on error.

Alice L. Kennedy commenced an action for divorce and alimony against her ¡husband, Ellis Kennedy, the trial resulting in a decree granting her a divorce on the ground of gross neglect of duty and awarding her as alimony certain personal property and $1,500 in money. The husband prosecutes error to so much of the decree as awards the allowance o£ $1,500 to the wife as alimony, and contends that by reason of the existence of an ante-nuptial contract between the parties she has-no right to an allowance of alimony and also that the evidence does not disclose such conduct on his part as would justify an allowance of alimony.

The evidence on which the trial court found the husband guilty of gross neglect of duty is not very strong, but we can not say that the finding and judgment are so manifestly against the weight of the evidence in that respect as to justify a reversal of the judgment.

The serious question in this case arises by reason of the existence of the ante-nuptial contract made between the parties immediately before their marriage. Each of the parties had been married before the present marriage, the wife having one child and the husband three children by former marriage. At the date of the marriage involved in this litigation, the wife was 48 years of age and the husband 66.

We are quite aware of the rule that ante-nuptial contracts will be scrutinized closely by the courts in order to ascertain whether the parties thereto fully understood the nature and terms of the same, and the property possessed by each, and whether any improper advantage was taken of either to induce the making of the contract. We find in this ease nothing which would indicate any lack of understanding of either party of the terms and conditions of the contract, or any unjust advantage taken of either party. The ante-nuptial contract which they made recites that Kennedy was possessed of property of the value of about $25,000 and that she was possessed of property of the value of about $2,500, and he covenanted in the contract to care for and support her out of his income so long as they should be husband and wife. By the terms of this contract he was to have and retain whatever property he was possessed of at the time of their marriage and she was to have and retain such property as she had at that time, but the accumulations ■after that date should belong jointly to the two parties. The contract contains the further provision that if for any reason the parties should separate and not live together as husband and wife, then she should not take or have any interest whatri ever in any of the property owned by him at the time of the marriage, but only in such property as should be accumulated by the parties through their joint efforts. The parties lived together as husband and wife for about a year and a half and 'then separated, there being no children as a result of the marriage. The trial court having found that the husband was guilty of such gross neglect of duty as entitled the wife to a divorce and alimony, and this court having found that such judgment is sustained by sufficient evidence, it necessarily results that the husband himself was guilty of a breach, not only of the marital relation but of the ante-nuptial contract whereby he had promised to support and care for the wife.

We are confronted then with the direct question whether a valid ante-nuptial contract can bar the allowance of alimony to the wife where the evidence discloses that the husband has been guilty of such gross neglect of duty as is a breach of his marital duties and a breach of the ante-nuptial contract. The authorities on this question are somewhat meager, but they appear to require the conclusion that under such circumstances the existence of the ante-nuptial contract is not a bar to the allowance of alimony. If the contract has not been substantially performed by the husband, then the wife ought not to be barred by such contract of the right to alimony given to her by the statutes of the state. In the case of Spiva v. Jeter, 9 Rich. (S. C. Eq.), 434; such a contract, which had been broken by the husband by his abandoning the wife for a term of years, was held not to bar the wife. In the case of York v. Ferner, 59 Ia., 487 (13 N. W., 630), a wife who has herself broken an ante-nuptial contract was held to be debarred from a right to recover an annuity provided for in such contract. This case was cited in Fisher v. Koontz, 110 Iowa, 498 (80 N. W., 551), which held that a breach of such a contract would not be a bar if the breach had been condoned. In the case of Becker v. Becker, 241 Ill., 423 (89 N. E., 737; 26 L. R. A. [N. S.], 858), where the ante-nuptial contract provided that the husband should keep alive for the benefit of the wife a life insurance policy, and he failed to do so, it is held that he had thereby forfeited his rights under the contract. In the case of Stearns v. Stearns, 66 Vt., 187 (28 Atl., 875; 44 Am. St., 836), it is held that an ante-nuptial contract providing that neither party should claim any interest in the property which the other had at the time of the marriage, or might acquire during coverture, would not bar the wife of alimony where the divorce was granted on the ground of wilful refusal of the husband to support her.

These cases sufficiently indicate the trend of authority and the reason upon which such authority is based, and we therefore reach the conclusion in this case that the wife was not barred by this ante-nuptial contract of her right to alimony, based upon the husband’s gross neglect of duty, which was a breach not only of the marital contract but of the ante-nuptial contract.

Judgment affirmed.

Kinkade and Chittenden, JJ., concur.