text:
    JUDGMENTS AND DECREES — PLEApiNGS.
    [Lucas (6th) Circuit Court,
    October 3, 1903.]
    Parker, PIull and Haynes, JJ.
    Edward T. Rafferty v. Toledo Traction Co.
    1. Cause of ActioN not Res Adjudicata Because Former Action was Dismissed for Defective Petition.
    A cause of action does not become res adjudicata by reason of the fact that a former .suit, involving the same sub] ect matter was dismissed on the grounds that the petition did not state facts sufficient to constitute a cause of action.
    2. Plaintiff Stands in Position of one to Whose Petition Demurrer had been Sustained.
    A plaintiff in such a case stands in the position of one to whose petition a demurrer has been sustained; and the fact that no demurrer was interposed, hut instead a motion to exclude the plaintiff’s evidence and direct a verdict for the defendant, which was granted and judgment rendered on such verdict, does' not change the position of the plaintiff nor render his suit res adjudicata.

    O. S. Brumback, for plaintiff in error:
    That recourse can be had to the opinion of the court (in a former action) to determine whether the decision was upon the merits where the record and decree leave the matter in doubt is well settled. Campbell v. Rankin, 99 U. S. 261; Davis v.. Brown, 94 U. S. 423; Russell v, Place, 94 U. S. 606; Baker v. Cummings, 181 U. S. 117 [21 Sup. Ct. Rep. 578] ; Covington & C. Bridge v. Sargent, 27 Ohio St. 233, 237.
    If the first suit was dismissed for defect of pleadings or parties, or a misconception of the form of proceedings, or the want of jurisdiction, or was disposed of on any ground which did not go to the merits of the action, the judgment rendered will prove no bar to another suit. Hughes v. United States, 71 U. S. (4 Wall.) 232; Gould v. Railway Co. 91 U. S. 526; Verhein v. Strickbein, 57 Mo. 326; Pepper v. Donnelly, 87 Ky. 259 [8 S. W. Rep. 441] ; Detroit v. Houghton, 42 Mich. 459 [4 N. W. Rep. 171, 287]; Brackett v. Hoitt, 20 N. H. 257; Rogers v. Higgins, 57 Ill. 244; 1 Daniell Ch. Prac. (3 Am. ed.) 683, 808; Foster v. The Richard Busteed, 100 Mass. 409, 412.
    It has been held an acknowledged principle that when it can be gathered from the record that the merits of the controversy were not passed upon in the first action, but the determination proceeded upon some technical objection not affecting the plaintiff’s ultimate right to sue, the first judgment will constitute no bar to th.e second suit. A contrary rule would be founded in such rank injustice as to be insupportable. Wells v. Moore, 49 Mo. 228, 230; Foster v. The Richard Busteed, 100 Mass. 409, 412; Buck v. Spofford, 35 Me. 526; Johnson v. White, 21 Miss. (13 Smed. & M.) 584; Carmony v. Hoober, 5 Pa. St. 305.
    A demurrer to a declaration is an admission by the defendant that the facts stated in the declaration are true, and a submission to the court of the question whether, on those facts, the plaintiff is entitled to recover. If the demurrer is sustained, the decision of the court is one of law, namely, that on the facts stated in the declaration, the plaintiff is not entitled to recover, and, if judgment goes upon the demurrer, the only issue which has been finally determined between the parties is one of law. Such a judgment only estops the plaintiff from raising,, in a second suit, the same question of law, in the prosecution of the same cause of action. North Muskegon (City) v. Clark, 62 Fed. Rep. 694 [10 C. C. A. 591; 22 U. S. App. 522] ; Moore v. Dunn, 41 Ohio St. 62; Wiggins Ferry Co. v. Railway Co. 142 U. S. 396 [12 Sup. Ct. Rep. 188] ; Board of Education v. Cosgrove, 5 Circ. Dec. 343 (11 R. 164).
    Under the act of April 12, 1858 (Sec. 5301 Rev. Stat.), the court is authorized, in a proper case, to arrest the testimony from the jury, and render judgment for the defendant. The judgment in such case, however, has not the effect of a nonsuit at common law, but is, under the provisions of the code above referred to, a decision of the action upon the merits. It is substantially the same as a judgment for the defendant on a demurrer to the plaintiff’s evidence at common law, or the submission of the case to the jury under instructions to return a verdict for the defendant, the same result being reached in either case. Stockstill v. Railway Co. 24 Ohio St. 83; Covington & C. Bridge Co. v. Sargent, 27 Ohio St. 233, distinguished.
    Canons of construction. Broom’s Legal Maxims- 848; Blake v. Davis, 20 Ohio 231, 242; Hall v. Plaine, 14 Ohio St. 417, 422; Robinson v. Green-ville, 42 Ohio St. 625; Trimble v. Doty, 16 Ohio St. 118; McCurdy v. Baughman, 43 Ohio St. 78 [IN. E. Rep. 93] ; Russell v. Toledo, 10 Circ. Dec. 367 (19 R. 418, 421) ; Golley v. Callan, 4 Circ. Dec. 233 (9 R. 217) ; Black, Proof & PI. in Accident Cases, Sec. 139; Monnett v. Turpie, 132 Ind. 482, 485 [32 N. E. Rep. 328] ; Denver & R. G. Ry. Co. v. Roller, 100 Fed. Rep. 738, 757 [41 C. C. A. 22]; Fink v. Jetter, 38 Hun (N. Y.) 163; Haynes v. Davidson, 8 Abb. N. C. 85; 40 Cent. L. J. 365; Svlvis v. Sylvis, 11 Colo. 319 [17 Pac. Rep. 912] ; Milliken v. Telegraph Co. 310 N. Y. 403, 408 [13 N. E. Rep. 251; 1 L. R. A. 281] ; Nyback v. Lumber Co. 90 Fed. Rep. 774 [33 C. C. A. 269; 63 U. S. App. 519]; Lynch v. Railway Co. 11 Circ. Dec. 243 (20 R. 248).
    But, however that may be, the actual judgment rendered does not appear to be one that is conclusive of the merits of the case. To give it the effect of such a judgment would not only create that which does not exist, but might work a great wrong to the plaintiff by finally determining a just cause of action which the court did not adjudge against him. Wan-zer v. Self, 30 Ohio St. 3TB, 381.
    Smith & Baker, for defendant in error.
   HULL, J.

The question in this case is one of res judicata — whether there was ■a former adjudication between the same parties, upon the same subject matter that would bar Rafferty from beginning and maintaining his action against the traction company. This former adjudication was set up by the traction company in its answer, and to that answer a reply was filed by the plaintiff denying that there had been a former adjudication of the cause of action as it is set forth in his petition in this case and setting: forth in detail in his reply the facts as he claimed them to be in regard to the former case and former judgment. A demurrer was filed to this reply. The demurrer of the traction company was sustained by the court of common pleas on the ground that the matter pleaded in the reply showed that there had been a former adjudication of the plaintiff’s claim, and the petition was dismissed and judgment entered in favor of the traction company, and it is to this judgment that error is prosecuted in this court.

Some time prior to the commencement of this action, perhaps, about two years, the plaintiff began an action against the traction company, alleging in his petition that he was in the employ of the traction company and was injured by reason of its negligence. It is conceded that the cause of action — the ground of this plaintiff’s complaint against the traction Company — is the same in this case as it was in the first case, but the claim is that it was pleaded differently in this last case and that certain objections which were made to the petition in the former case are obviated in the pleadings in this case and that, therefore, the judgment in the former case is not a bar.

The first case was decided by the trial court upon, an objection to any evidence being offered upon the trial, on the ground that the petition did not state a cause of action. This motion was sustained by the court, and the jury directed to return a verdict in favor of the defendant, and judgment entered on the verdict. Error was prosecuted to this judgment in the circuit court and it was affirmed, and the case was then taken to the Supreme Court and the judgment of both the common pleas and of the circuit court was affirmed. While the case was pending in the Supreme Court, plaintiff began this second action, alleging his grievance and especially making allegations as to his own conduct upon the occasion of his injury differently from the allegations in the first petition, and he claims that the former judgment is.not a bar.

Plaintiff claimed in his petition in the first case, as he does in this one, that he was in the employ of the traction company at the time of his injury, in this city, working on a floor some twenty-two feet from the ground, in the night; there was a hole in the floor at some little distance from where he was working; that he knew of this hole and had seen it two or three weeks before his injury and at that time it was surrounded by barrels and other barricades, and a light was near itthat on the night in question it was necessary for the plaintiff to go to the rear of the room, to answer a call of nature. Not seeing the barrels, or the lights, he did not think of the hole, fell through and was seriously injured. These were, in substance, his allegations in the first petition on the subject of his injury. As alleged in this reply to which the demurrer was sustained, when the case came on for trial before the court of common pleas, the traction company objected to any evidence being offered, for the reason that the petition did not state a cause of action, and, as the reply alleges, the court sustained this objection upon the ground that the petition showed that the plaintiff knew of this hole in the floor and that his allegations were not sufficient to excuse him for falling into it, with the knowledge he had that the hole was there. The court held, the reply avers, that the allegation was not sufficient to excuse the plaintiff, within the rule of the case of Chicago & O. Coal & C. Co. v. Norman, 49 Ohio St. 598 [32 N. E. Rep. 857] ; and, as stated in the reply, the court, upon this ground, directed the jury to. return a verdict for defendant, which was accordingly done; a motion for a new trial was.overruled and judgment entered. After the judgment of affirmance in the circuit court plaintiff began this new action. He claims that the judgment of the court upon the first trial was not uj5on the merits, and, therefore, not a bar; that it is within Sec. 4991 Rev. Stab, which provides:

“If, in an action commenced, or attempted to be commenced, in due time, a judgment for the plaintiff be reversed, or if the plaintiff fail otherwise than upon the merits, and the time limited for the commencement of such action has, at the date of such reversal or failure, expired, the plaintiff, or, if he die and the cause of action survive, his representatives may commence a new action within one year after such date. * * *”

Plaintiff claims that he had not failed upon the merits of his claim against the traction company; that he had failed only by reason of a defect in his petition; that the cause of action which he has, has never been tried or submitted to any court, and that, therefore, the way is still open for him to begin another action, under-this section; that the former judgment is not res judicata as to his claim. On the other hand, the traction company claims that this is the cause of action that the plaintiff set up in his former petition, and that if he- failed to prosecute that upon a proper petition, it was his own fault; that he has had his day in court and this judgment had been entered against him and that he is barred. As I have said; plaintiff took his case to the circuit court and that court affirmed the judgment of the common pleas, but put it on another ground. According to the opinion — Rafferty v. Traction Co. 10 Circ. Dec. 347 (19 R. 288) — this court held that the common pleas court was wrong in holding that the allegations of the petition were not sufficient to avoid the admitted fact that he had knowledge of this hole, but held that the judgment of the common pleas court was right for the reason that there was no allegation in the petition showing that the back part of this room was a proper place for plaintiff to go to answer a call of nature or that it was the usual and customary place for the men employed there to go, and that therefore the petition was faulty in that it did not show that he was in the performance of any duty or that he was where he had any business to be 'at the time he was injured, and, on this ground the circuit court held that the petition was defective and affirmed the judgment of the court of common pleas. The Supreme Court affirmed without report both judgments.

When counsel for Rafferty drew his second petition he inserted in it the omitted allegations that the circuit court held were necessary, to wit, that the place where he went in the night was the proper and usual place for him to go for that purpose; that it was the place where the men there employed did go for that purpose, and thereby cured the defect that the circuit court found in his petition. Then the traction company filed the answer in which it set up the former adjudication, and Rafferty filed the reply containing these allegations and showing the facts to be substantially as I have stated. The court of common pleas held that, notwithstanding this difference in the petition, this addition or amendment to it, that the former judgment was a bar, the cause of action being the same.

It was argued here that if plaintiff failed to draw his first petition so as to show that he was himself not guilty of contributory negligence, it was his own fault, or that of his counsel, and he could not now have his cause of action passed upon again in the form of a new case; that his cause of action against the traction company was settled, adjudicated and ended.

Whether a former judgment is res judicata, is a question which has been often discussed by the courts; and in determining the question it is held, generally, that oral evidence may be offered to determine whether on the former trial the same issues were presented and determined as are sought to be determined and presented in the second case; that witnesses may be called and the charge of the court, if it is a jury trial, may be shown by oral evidence, or the opinion of the court, if it is an error case, may be shown, and oral or written evidence offered as to that to determine what the real question was that was decided either by the court or by the jury and what issues were in fact settled by the judgment in the case. A judgment is final and res judicata as to all the issues that are settled and .determined in the case; they cannot be readjudicated between the same parties, and it is claimed by the defendant in error that that was the fact in this case.

In Moore v. Dunn, 41 Ohio St. 62, this is found in the syllabus:

“In an action by M against D, a demurrer to the petition was sustained for want of a material averment therein, and M failing- to amend, judgment was given for D.
“M afterward brought another action against D, upon the same cause of action, and in his petition supplied the material averment wanting in the petition in his first action.
“Held: . That the judgment in the first action.was not a bar to the cause of action alleged in the second one.”

This opinion was by Judge McCauley. The court speaking through him says on page 63 :

“The single question in this case is, whether or not a Judgment for the defendant upon a petition which did not state facts sufficient to constitute a cause of action, is a bar to a future action between the same parties for the same cause. A judgment for the defendant given upon the facts stated in the petition is conclusive upon the plaintiff only as to the facts therein stated. If the facts alleged make a cause of action a judgment upon them is final between the parties. If the facts do not state a cause of action a judgment upon them is not a judgment upon the merits of the case, and does not stand in the way of a future action for the same cause.” (Citing several authorities.)

Counsel for defendant in error urge, upon the authority of Covington & C. Bridge Co. v. Sargent, 27 Ohio St. 233, and other cases, that a second action cannot be maintained. These cases do not support - this claim; they apply to a wholly different state of facts. In these cases, sufficient facts were alleged in tiñe first petition to make a cause of action and the cases were heard upon their merits. Further along, in Moore v. Dunn, supra, Judge McCauley says, page 64:

“The merits of the case having once been heard the judgment was final; while a judgment for a defendant on demurrer to a petition which did not state a cause of action determined nothing, only that the facts alleged were not sufficient to constitute a cause of action. The determination, therefore, did not reach -the merits of the case and did not com elude.the plaintiff in a future action in which sufficient facts were alleged.’’

It is claimed by the plaintiff in error that he stands the same as' though a demurrer to his petition had been sustained. But it is urged by the defendant in error that in this case a jury was sworn and a trial had and a verdict directed by the court and' a judgment entered upon the verdict after a motion for a new trial had been overruled and that therefore this cannot be regarded as the same as the sustaining of a demurrer to a petition, but that it is a trial upon the merits in which the judgment is final. We are of the opinion that the contention of the'plaintiff in error is right, and that the action of the court upon the first petition is to all intents and purposes the same and should be treated as having the same effect as though a demurrer to the petition had been sustained on the ground that it did not state a cause of action. The motion upon that trial was to direct a verdict for the reason that the petition did not state facts sufficient to constitute a cause of action. This is an objection which may be made at any stage of a case. A demurrer may be filed as soon as a petition is filed, or, if counsel deem it the better practice, he may wait until the case is’ called for trial, or he may wait until after the jury is sworn, or perhaps he may wait until after judgment is taken, unless the court gives leave to amend. The facts that the petition is insufficient; that there are not sufficient facts stated, may be taken advantage of at any time, but whether it be by demurrer or by motion to direct a verdict, the judgment is asked upon the same ground — that there are not sufficient facts alleged in the petition; that plaintiff has not a cause of action stated, upon which a judgment may rest. The fact that the jury was sworn, and a verdict directed as in this case, does not change the situation —the plaintiff has not failed upon the merits. He has not had an opportunity to present to the court, or to the jury, his cause of action or his claim which he asserts he has against the company by reason of its alleged negligence; he has been prevented from that by the court upon the ground that his-petition was faulty and defective in that it showed that his conduct was such upon the occasion of his injury that he could not recover, and the court has determined this fact and this only — that his former petition did not state a cause of action, and as to that fact the judgment is res judicata and would bar him from raising that question again; but the courts have not determined that his claim as stated in this petition does not constitute a cause of action, and it is conceded that this petition does state a cause of action. He has cured in this petition the defects 'which were pointed out by the court in his former petition, and, in our judgment, he is not bdrred by the former judgment.

Moore v. Dunn, supra, is sufficient to decide this case, and it has never been overruled or criticised by the Supreme Court. There are decisions of other states that may be cited to sustain this doctrine.

In Carmony v. Hoober, 5 Pa. St. 305, the court say, on page 301 of the opinion:

“On the contrary, it has been held as an acknowledged principle, that when it can be gathered from the record, the merits of the controversy were not passed upon in the first action, but the determination proceeded upon some technical objection not affecting the plaintiff’s ultimate right to sue, the first judgment will constitute no bar to the second suit.”

In Foster v. The Richard Busteed, 100 Mass. 409, 412, the supreme court of Massachusetts says:

“The doctrine of res judicata is plain and intelligible, and amounts simply to this, that a cause of action once finally determined, without appeal, between the parties, on the merits, by any competent tribunal, cannot afterwards be litigated by new proceedings either before the same or any other tribunal. But no such effect is -attributable to a decree dismissing a bill for want of jurisdiction, failure of prosecution, want of parties, or any other cause not involving the essential merits of the controversy.”

In Board of Education v. Cosgrove, 5 Circ. Dec. 343 (11 R. 163), the circuit court of Hamilton county holds, in the syllabus:

“The form of action has no bearing upon the right to plead res adjudicata, but the controlling question is whether the issues be the same in both cases, and on this question the court will go into evidence to find what issues were actually tried, if it does not appear by the record itself,”

Another case is North Muskegon (City) v. Clark, 62 Fed. Rep. 694 [10 C. C. A. 591; 22 U. S. App. 522], and the first paragraph of the syllabus is:

“Judgment rendered against a plaintiff on demurrer' to his declaration, because it does not aver a fact essential to a recovery, is no bar to a second suit by him on the same cause of action, wherein the declaration, in stating the cause of action, avers the essential fact previously omitted.”

Judge Taft, who delivered the opinion on page 696, says:

“If the demurrer is sustained, the decision of the court is one of law, namely, that, on the facts stated in the declaration, the plaintiff is not entitled to recover, and, if judgment goes upon the demurrer, the only issue which has been finally determined between the parties is this one of law. Such a judgment only estops the plaintiff from raising, in a second suit, the same question of law in the prosecution of the same cause of action. It does not prevent him from prosecuting a second time, the same cause of action, provided he can and does allege, in his declaration, additional facts, so that its legal sufficiency to sustain a recovery does not depend on the question of law upon which the demurrer in the first case turned/’

Judge Taft cites in support of this, Gould v. Railway Co. 91 U. S. 526.

As averred in the reply, the court directed the jury to return a verdict in favor of the defendant. It might be asked whether the court would not have had the power, if the petition was thus defective, to enter up' judgment on motion against the plaintiff and dismiss the petition without submitting the question to the jury at all. In our judgment the court would have this power, and that submitting the case to the jury by directing a verdict for defendant, it neither adds to nor takes away from the force and -effect of the judgment. It was the judgment of the court that the petition did not state facts sufficient to constitute a cause of action, and the court might as well have entered judgment itself upon the pleadings as to direct the jury to return a verdict and then enter up judgment. We are clear, after examining this case very carefully, that the former judgment was not a bar; that whether Rafferty’s cause of action is meritorious or not, or whether he has a valid cause of action against defendant, has not been decided; and, in our opinion, the court of common pleas erred in sustaining the demurrer to the reply.

For these reasons the judgment of the court of common pleas will be reversed and the cause remanded with instructions to the court of common pleas to overrule the demurrer to the reply.


source: Caselaw Access Project

author: MARVIN, J.

license: Public Domain

text:
    CONTRACTS — COUNTERCLAIM—DAMAGES—VERDICT.
    [Cuyahoga (8th) Circuit Court,
    November 30, 1903.]
    Hale, Marvin and Winch, JJ.
    Horace W. Power v. George G. Brown.
    1. Contract Divisible Containing one Consideration and two Independent Covenants.
    An agreement entered into between two agents of different insurance companies whereby one agrees, in consideration of an agreement by .the other to pay him a certain per cent, of premiums on insurance turned over to him by the former, to use his best efforts to place the business of insurance under his control with the company represented by the other agent, and also to turn over to such agent his good will and interests in certain renewals and not solicit for said business in the future for any' other company, is a oontract containing a single consideration which supports two independent covenants of the same party, and is therefore divisible; and where there is a performance of the former covenant, but a breach of the latter, a recovery may be had for the commissions earned under the former subject to a counterclaim for the damages resulting to the promisee by reason of the breach of the latter.
    2. Verdict not Disturbed for Improper Charge not Affecting Same.
    A verdict will not be set aside on account of an improper instruction contained in the charge as to the allowance of nominal damages in case the jury is unable to ascertain the amount with reasonable probability, when it is manifest from the verdict that it did not affect the same. Hence, a verdict for nearly $200 will not be disturbed by reason of an improper instruction that, in such a case, five or six cents may be allowed as nominal damages.
    Error to the court of common pleas.
    Hoyt, Dustin & Kelley, for plaintiff.
    Kline, Carr, Tolies & Goff, for defendant.
   MARVIN, J.

Suit was brought in the court of common pleas by Brown against Power, claiming to recover a balance due to him for commissions upon certain insurance policies issued by Power to parties who had been taking their insurance from Brown and by his influence had been induced to take policies in companies represented by Power. Both Power and Brown were insurance agents in the city of Cleveland.

On or about November 15, 1897, Brown, deeming it best for some reason to have parties who were insured in the company represented by him reinsured in some other company, entered into an arrangement with Power by which he (Brown) was to transfer certain business to Power. This is evidenced by a writing, in the following words:

“Confirming my proposition, I propose to use my best efforts in placing this business with your company, and on all business so placed and ■premiums collected, you to allow me full general agent’s commission as per your contract.
“And in consideration of said full general agent’s commission, I agree to turn over my good will and interests in all renewals after the first year, and agree not to solicit said business in the future for this or any other company.”

This was signed by Brown and accepted by Power,

Pursuant to this contract, Brown turned over a considerable amount of business to Power and received from Power a considerable amount by way of commissions on premiums. It is stipulated in the record that the amount of commissions provided for in this contract for the first year, which Brown would be entitled to in case he has not forfeited his right by reason of facts hereinafter to be stated, is $786.11, with interest from October 27, 1899.

It is further stipulated that Brown, after the making of the contract between himself and Power, became the agent of the Maryland Casualty Company and as such agent solicited and secured quite a number of natural persons and corporations to take out policies of insurance in said last named company who had been insured in the 'company which Brown represented at the time he made his contract with Power and who, through his influence, had turned over their insurance to the company represented by Power.

The defense set-up is that this conduct of Brown in thus soliciting and securing parties- tp insure with him in the Maryland company was such a violation of the contract entered into between him and Power as to bar him from any recovery and to entitle Power to recover back the commissions which he had already paid to Brown.

On the other hand, the claim is made thát the contract was a divisible one; that Brown for one single consideration undertook to do- two separate things; that he did one of these two things, to wit, in the language of the contract, used his best efforts in placing the business of insurance which lie then had with the company represented by Power; that the other thing which Brown undertook to do, to wit, turn over his good will and interests in all renewals after the first year and not to solicit said business in the future for any other company, he failed to do; that this failure to do the two things is not a defense to the claim made for doing the first thing, but is only a ground for damages to be asserted by Brown and available in this action only as a counterclaim to whatever claim Brown has for doing the first thing, to wit, the $786.11. This latter view was taken by the trial court and the jury were charged accordingly, and properly charged if this view of the case is correct.

There remains, therefore, the question of whether this contract is to be treated-as an entirety or as divisible. We hold that it is divisible. When Brown used his best efforts to place the business which he had with the company represented by Power, he did the first thing which he undertook to do.

Suppose that he had done nothing in violation of any stipulation of his contract until the expiration of one year from its date after having turned over the business, so far as he was able, to Power; could it be doubted that he would then have been entitled to the commissions for that, one year which are provided for in the contract, and that if thereafter he had solicited the same business for his Maryland company Power would have been remitted to his claim for damages because of such actions on the part of Brown ? The time for which Brown contracted that he would not solicit such business was unlimited, and it would seem that it must have been in the contemplation of the parties that if Brown violated his contract by soliciting said business in the future he was to be liable in damages to Power. If this is correct, we are unable to see that his violating the contract in this manner before the expiration of the year gave Power any remedy against him which he would not have had if the violation had taken place after the expiration of the year.

The case of Burckhardt v. Burckhardt, 36 Ohio St. 261, is in point. That was a suit brought by one who had sold the property and good will to his partner in the business of the copartnership. By the contract the plaintiff, among other things, agreed that lie (the plaintiff) would not thereafter do business by or under the name of Burckhardt & Co., which was the name of the copartnership between the parties, in the city of Cincinnati. Immediately after the execution of the contract the plaintiff did enter into business in Cincinnati under the name and style of L. Burckhardt & Co. In purchasing the property the defendant had given to the plaintiff his promissory notes secured by a mortgage. The suit was for a foreclosure of this mortgage. The defendant for answer set up that the plaintiff, having violated his contract, was not entitled to any payment upon the notes and mortgage. The court held that this was not a defense to the action, but that if the plaintiff had violated his contract such violation could only be made available to the defendant as a counterclaim, and on page 280 uses this language:

“The counterclaim to which the defendant was entitled was one for damages only. There was no failure of consideration, in the proper sense of the term, v.hich could be available as a mere defense.”

The case of Courcier v. Graham, 1 Ohio 330, is also in point. The opinion, which is by Judge Hitchcock, is exhaustive and the reasoning is sound. In this opinion there is a complete discussion of the matter of mutual and independent covenants in the contract. Many cases are cited in the opinion in support of the views expressed, and we think the case fully justifies the view of the case now under consideration taken by the court below.

If the contention of the defendant here is sound, then Brown was entitled to nothing for the business which he had transferred to Power because, after transferring it, he solicited and obtained for the Mainland company a comparatively small part of the business which Power got from him or by his efforts. Before this suit was brought Brown had received a considerable amount by way of commissions on this business, and, as .before stated, was still entitled to more than $800 on account of such commissions except for the fact that by his solicitation, in violation of his agreement, he had obtained some of it for his new company, and not only should he be barred of a recovery here but he should be adjudged to repay to Power all that he (Brown) had already received; and .yet the amount of business that he had taken from Power was but a small part of that which Power had received from him, and it would seem, upon principles of justice between the parties, that Power’s only right should be compensation in damages for the amount of business so diverted from his agency to that of Brown.

Complaint is made that the court erred in its charge to the jury on the measure of damages to be allowed to Power. The court used this language in the charge, speaking of .the measure of such damages:

“The amount of such injury or loss, if any, which you find that the defendant thereby sustaihed will be the measure of the damages which the defendant is entitled to recover on his counterclaim and 'cro.ss-petition, in case you find for him thereon. In arriving at the amount of such damages, if any, you may consider in connection with the other facts and circumstances in the case as found by you the amount of commission received by the plaintiff upon the premiums for policies of insurance solicited and obtained by him from persons whose policies had been transferred to the Travellers’ Insurance Company by or through the instrumentality of the plaintiff, and it is for you to say from the testimony whether the commissions on such premiums would otherwise have been received by the defendant. ' Although you may not be able to determine accurately the amount of damages, if any were sustained by the defendant, yet if from all the testimony, you are able to estimate with reasonable probability the amount of such damages, you may thus estimate the same.”

This would seem to be a fair statement of the means for determining the measure of the defendant’s damages, and perhaps would not be complained of but for what follows, in these words:

“If from all the testimony and the facts and circumstances of this case you are unable either to find or to estimate with reasonable probability the amount of damages, if any, sustained by the defendant, then the defendant would be entitled to recover only nominal damages, that is, five or six cents, or some other small sum.”

Whether this last quotation properly stated 'the law or not, it is manifest from the verdict in the case that it did not affect the verdict of the jury. If that verdict had allowed to the defendant only nominal damages we should be called upon to determine whether this language was erroneous or not, but in view of the fact that the jury found that they could determine,- and did determine the amount of the defendant’s damages to be nearly $200, it is clear that this part of the charge did not affect the verdict.

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


author: GIFFEN, J.

text:
    SCHOOLS — INJUNCTION-MANDAMUS.
    [Clinton (1st) Circuit Court,
    November 28, 1903.]
    Giffen, Swing and Jelke, JJ.
    State, ex rel. Haines, v. Chester Township (Bd. of Ed.).
    1. No Imperative Duty on Township Board of Education to Purchase Site-Necessity may be Reconsidered.
    No imperative duty rests upon the township board of education, under the act of April 16, 1900 (94 O. L. 317; Sec. 3927-1 Rev. Stat. et seq.), to purchase a site and erect a school building until after a determination by the board of a necessity therefor, and such finding may be reconsidered by the 'board or its successor, subject only to existing contract rights.
    2. Centralization of Township Schools an Imperative Duty.
    The centralization of the township schools is a duty imperatively imposed upon the township board of education under act of April 16, 1900 (Sec. 3927-1 Rev. Stat. et seq.).

    3. Remedy for Impairment of Contracts by Change in Centralization.
    The remedy of a contractor having a valid contract with the township board of education for an impairment of his contract rights by reason of a change made in good faith in the centralization of the township schools, is an action at law.
    4. Injunction not Proper Remedy — Joint P^bdtstrtptr not Abolished by Vote for Centralization.
    Injunction is not an appropriate remedy to restrain a township hoard of education from maintaining separate schools in one joint sübdistiict, although there has been a vote in favor of centralization. Such vote does not, under Sec. 3927-1 Rev. Stat., ipso facto abolish joint subdistricts, but subdistricts only. The proper remedy, if any exists, is by mandamus to compel the board to include joint subdistricts in the centralization.
    D. B. Van Pelt and Smith Sc Clevenger, for the relators.
    Thorpe & Miller, A. E. Clevenger and L. J. Walker, for defendants.
   GIFFEN, J.

As we construe the act of April 1C, 1900 (94 O. L. 317), we think counsel for relators lay too great stress upon the imperative duty of the board of education to purchase a site and erect a suitable building thereon. It is only when the board deems it necessary to purchase a site and erect a building thereon that the act requires them to do so, and there is nothing in the act itself preventing the original board, before the building is erected or commenced, from reconsidering the action taken, and resolving to centralize the schools not in one but in two places. It may have made a mistake in the first instance, and the very discretion vested in it by the act carries with it the power and duty to correct that mistake.

If the original board may reconsider its action in this respect, then .its successor, being clothed with all the powers of the old board, may exercise them, with a like discretion, subject, however, to the rights of a party to any contract the former board may have made. It may be said that successive boards may thus undo all that their predecessors have done, prevent the centralization of the schools, and ultimately defeat the will of the people; but it is only the natural result of our elective system of government and is in reality the expression of the will of the people through its chosen representatives. Such boards cannot legally refuse to centralize the schools because the law makes this duty imperative, but the mode and mknner of performing it is discretionary, and if the duty is not performed by the old board such discretion is vested in its successor. If the building contractor has a valid contract, his remedy is an action at law, and so long as the present board of education is proceeding in good faith to centralize the schools of the township, .its discretion with respect to the manner of doing it cannot be controlled by the extraordinary writ of mandamus, although its judgment may be faulty. While the purchase of a site is an incident of the centralization of the schools, it is not necessarily included in that term as defined' by Sec. 1 of the act of the general assembly, and being effected by the predecessor of the incumbent board, each possessing like authority in the premises, it does not come within the principle announced nor the statute construed in the case of Moss v. Board of Education, 58 Ohio St. 354 [50 N. E. Rep. 921]. We are of the opinion, therefore, that the action of the present board in proceeding to centralize the schools in two places -within the township district, whether wise or unwise, if done in good faith, cannot be prevented by mandamus.

The hostility of the board to centralization, its dilatory action in effecting it, and the appropriation of $1,000 for the expenses of litigation, may be open to just criticism, but do not warrant a finding that it acted in such bad faith as to require this court to interpose by writ of mandamus. The relators, by an amendment to the position, seek to enjoin the defendant board from maintaining separate schools in the joint subdis-tricts which are under the control of the board of education of Chester township. In the case of Harlan v. Board of Education, unreported, it was not necessary, nor did this court decide, that such joint subdistricts were abolished by the vote for centralization. Section 3927-1 Rev. Stat. provides in express terms for the abolishment of subdistricts only, and whatever doubt may have existed as to whether joint subdistricts were, by implication, included in the term subdistricts has been removed by Sec'. 3927-5 Rev. Stat., as amended May 12, 1902 (95 O. L. 619). Besides, if the board of education is required by law to include joint subdistricts in centralizations, they could be compelled to do so by mandamus under the original petition, and injunction would not be an appropriate remedy. The object of mandamus is to compel performance, while the office of injunction is to restrain.

The injunction and mandamus will each be refused.

Judge Gififen does not concur in the finding that the joint subdistricts are not abolished.


author: HULL, J.

text:
    BILLS AND NOTES — EVIDENCE.
    [Lucas (6th) Circuit Court,
    October 31, 1903.]
    Parker, Hull and Haynes, JJ.
    Charles E. Tucker v. John Hendricks.
    1. Whether Giving of Note was in Payment of Debt for Jury, When.
    Where a debtor attempts to satisfy a claim by the giving of his note for the amount thereof, which note was taken by the creditor, it is a question for the jury whether the note was accepted in payment of the claim.
    2. Witness May Testify as to his Intention, When.
    Where intent is material, it is proper to ask a witness what his intention was with reference to the matter in hand.
    3. Innocent Alteration of Note Without Plaintiff's Consent Does not bar Action Upon Original Claim, When.
    A note drawing six per cent., given in satisfaction of a claim, was deposited by the payee in bank and placed to his credit. Some officer of the bank, with the understanding that between the bank and the payee the note was to draw eight per cent., the payee having obtained a loan from the bank at that rate,' innocently wrote the words “eight per cent.”' upon the note. At maturity, payment of the note was refused because of the alteration, and suit was brought against the maker by the payee upon the original claim: Held, that the note having been innocently altered, without the knowledge or consent of the plaintiff, he had a right to pay the bank the amount of the note, take it back, and bring an action upon the original claim.
    ERROR to common pleas court of Lucas county.
    Gilbert Harmon, for plaintiff in error, cited :
    Neff v. Horner, 63 Pa. St. 327 [3 Am. Rep. 555] ; Fulmer v. Seitz, 68 Pa. St. 237 [8 Am. Rep. 172] ; Moore v. Hinsliaw, 23 Ind. App. 267 [55 N. F. Rep. 236] ; Holmes v. Trumper, 22 Mich. 427 [7 Am. Rep. 66l] ; Sheley v. Sampson, 5 Kan. App. 465 [46 Pac. Rep. 497] ; Harsh v. Klepper, 28 Ohio St. 200 ; Thomson v. Massie, 41 Ohio St. 307, 319 ; Woodworth v. Bank, 19 Johns. 391 [10 Am. Dec. 239] ; Russell v. Failor, 1 Ohio St. 327 ; Davis v. Bauer, 41 Ohio St. 257 Chitty, Bills 84 ; Miller v. Master, 4 Term 325 ; Martendale v. Follet, 1 N. H. 95 ; Wheelock v. Freeman, 13 Pick. 165 [23 Am. Dec. 674] ; VanAuken v. Hornbeck, 14 N. J. Law (2 Green) 178 [25 Am. Dec. 509]; Martin v. Bond Hill, 4 Circ. Dec. 591 (7 R. 27l).
    J. E. Ladd and Shefler & Campbell, for defendant in error, cited :
    Rousculp v. Railway Co. 10 Circ. Dec. 621, 624 (19R. 436); Merrick v, Boury, 4 Ohio St. 60, 61; Weller Co. v. Gordon, 24 O. C. C. 407, 414 ; Tobey v. Barber, 5 Johns. (N.Y.) 68 ; Clark v. Young, 5 U. S. (l Cranch) 181 [2 b. Ed. 74]; Henderson-Achert Litho. Co. v. Belford, 10 Dec. 640 (8N.P. 640); Sutliffv. Atwood, 15 0hioSt. 186;'22 Am.&Eng. Enc. Law (2 ed.) 553, 555 ; Peterv. Beverly, 35 U. S. (10 Pet.) 532 [9 L- Ed. 522]; Tompkins v. Tompkins, 158 N. Y. 679 [52 N. E. Rep. 1126] ; Phoenix Ins. Co. v. Allen, 11 Mich. 501 [83 Am. Dec. 756] ; 4 Am. &Eng. Enc. Law (2 ed.) 287 ; Johnston Harvester Co. v. McLean, 57 Wis. 258 [15 N.W. Rep. 177; 46 Am. Rep. 39]; 9Neb., 4 [lN.W. Rep. 980,981; 31 Am. Rep. 394]; Wiison v. Hayes, 40 Minn. 531 [4L- R. A. 196,198 ; 42 N.W. Rep. 467; 12 Am. St. Rep.754]; Winters v. Mowrer, lRa. Super. Ct. Rep. 47 ; Ottov. Halff, 89 Tex. 384, 392 [34S. W. Rep. 910] ; 6 Wait, Act. & Def. 485 ; Story, Prom. Notes (7 ed.) 131 ; Maxwell, Code Plead. 118, n. 2 ; 5 Lawson, Rights & Rem. 4109, n. 6 ; 2. Am. & Eng. Enc. Law (2 ed.) 200, 214, 216, 217, 261, 262;-. Vogle v. Ripper, 34 Ill. 100 [85 Am. Dec. 298]; Booth v. Powers, 56 N. Y. 22; Millerv. Stark, 148 Pa. St. 164 [23 Atl. Rep. 1058] ; Fellerton v. Sturges, 4 Ohio St. 529, 530; Tarbill v. Mill Works, 1 Circ. Dec. 643, 646 (2 R. 564) ; Morrison v. Welty, 18 Md. 169; Hunt v. Gray,' 35 N. J. Law 227 [10 Am. Rep. 232] ; Singleton v. McQuerry, 85 Ky. 41 S. W. Rep. 652]; Aetna Nat. Bank v. Winchester, 43 Conn.-391 ; Brooks v. Allen, 62 Ind. 401 ; Ni.ckerson v. Swett, 135 Mass. 514: Rees v. Overbaugh, 6 Cow. (N. Y.) 746; 3 Am. & Eng. Enc. Raw (2 ed.) 817 ; Levi v. Bank, 5 Dill. 104 [ 15 Fed. Cas. 415j; National Gold Bank v. McDonald, 51 Cal. 64 [21 Am. Rep. 697]; Manufacturers Nat. Bank v. Bank, 148 Mass. 553 [20 N. E. Rep. 193 ; 2 b. R. A. 699 ; 12 Am. St. Rep. 598] ; Boulware v. Bank, 12 Mo. 542 ; Rogers v. Shaw, 59 Cal. 260 ; Nevins v. DeGrand,.l5 Mass. 436; Eaton & Gilbert, Com. Paper 558 ; White Sewing Machine Co. v. Dakin, 86 Mich. 581 [49 N. W. Rep. 583 ; 13 L. R. A. 313]. „ ' '
   HULL, J.

This action was brought by the defendant in error, plaintiff below, against C. E. Tucker, plaintiff in error, to recover $550, which the plaintiff claimed was due and owing to him for services that he had performed in and about the oil business in which Tucker was engaged. The defendant below, by way of defense, claimed that he had had a settlement with plaintiff and had given him his note for $550 in full payment of this claim. The plaintiff admitted that he had taken this note for $550 but averred that the Pemberville Banking Company, where he had deposited the note as collateral, without any fraudulent intent, altered the note by writing this in it, “Int. 8 and that the defendant having refused to pay the note on account of its having been so altered when presented to him for collection by the bank, that the plaintiff paid the bank the amount of this note and took it back and brought suit against Tucker on his original indebtedness. Plaintiff claimed and averred that this alteration was made by the bank without any fraudulent intent or purpose, but inadvertently; that therefore his claim was in full force and effect although the note had been so altered that it could not be sued upon. The action against Tucker was tried to a court and jury and a verdict returned in favor of Hendricks for the full amount of his claim and judgment entered on the verdict, and this action is brought to reverse that judgment.

It is claimed by the plaintiff in error that the note had been altered by the bank in this manner after being deposited with it by the plaintiff; that no recovery can be had either upon the note or upon the original indebtedness. The evidence fairly shows that the plaintiff took the note to the bank and deposited it, and it was placed to his credit in his account ; that he, at that time,- obtained a loan of about this amount from the bank, but the proceeds of this note went into his account in the bank and it might perhaps be' regarded as a discounted note, but just what the transaction ought to be called the witnesses disagree upon. The note, as drawn, drew six per cent, interest and ran for three months. The bank was not in the habit of loaning‘.money at less than eight per cent., and made an arrangement with Hendricks whereby this note as between themselves was to draw eight per cent, interest, and thus make up the other two per cent., and some officer of the bank (it does not appear clearly who) knowing about this arrangement, wrote on the face of the note “Int. 8%,” so as to have a memorandum of this contract, the officer of the bank being under the impression, evidently, that the note was, so far as they were concerned, to be regarded as an eight per cent. note. When the note became due the bank had it presented to Mr. Tucker, and he refused to pay it on the ground that it had been altered. It was sent back to the bank, and the bank notified Mr. Hendricks, and he immediately took the note up, waiving any defense that he might have or any complaint that he might have made that the bank had altered the note so that it could not be. collected. ' ' -‘j

Tucker makes no claim that he has paid this claim; he admits that he owes $550 for work and labor done for him in the oil fields. There is no pretense that that has been paid or extinguished in any way unless it was by the act of the person in the bank inadvertently writing a few letters upon his note.

We are of the opinion that the judgment of the common pleas court was correct. The cashier of the bank testifies that it was altered without any fraudulent intent on his part, if he did it, and so far as his knowledge goes, without any fraudulent, intent on the part of any officer of the bank. The whole transaction occurred in the way I have stated, and appears to have been perfectly honest and without any intent to defraud Mr. Tucker in any manner whatever, but this was written on the face of the note clearly with the impression that the bank had a right to make this memorandum. There was no intent to make an alteration against Mr. Tucker, or to enforce more than six per cent, against him.

The question involved is fully discussed in two cases; the first one, Merrick v. Boury, 4 Ohio St. 60:

“It is only by force of an agreement of the parties that the giving of an unsealed note by the debtor will be payment of a precedent debt. The burden of proof is 'upon the debtor, who must establish the agreement clearly; and the question whether there was such an agreement is one of fact to be determined by the jury.
“A vendee of goods, subsequently to the purchase, gave his note for the price, but it was not received as payment. Afterward, the vendors, to whom it was payable, without any fraudulent purpose, and under an honest mistake of right, materially altered it. Held, that such alteration did not preclude a recovery upon the original cause of action, the 'precedent indebtedness.”

In the case at bar the claim was made that this note had been taken in payment. Plaintiff denied that it was taken in payment; and that was a question to submit to the jury, and it was found by them that it was not taken in payment. There is no conflict among the authorities that there must be an agreement that the note was taken in payment or something equivalent to that, otherwise it will not be held to have been so taken in payment.

Another case, Fullerton v. Sturges, 4 Ohio St. 529, 530, where the court say in the syllabus:

“The material alteration of a written instrument, made by a stranger, will not avoid, it.”

The alteration in the case at bar was made by a stranger. But it is insisted by the plaintiff in error that the plaintiff below had sold and transferred the note to the bank and had no right to take it up. It may be true that the bank could not have compelled him to pay this note and take it up, the bank having altered it, though innocently. He might have-made that objection; he might have made that defense perhaps to any action which the bank might have brought against him; but he had a right to waive this and pay it, and if he took the note back Tucker cannot complain. Tucker still owes the debt, and it is incumbent upon him to pay it, and neither the defendant nor the bank have been guilty of any fraudulent act or have done anything with intent to injure Tucker in regard to this note.

One of the alleged errors complained of is that the court permitted the cashier to testify whether he had any intention to defraud or whether any of the officers of the bank, so far as he knew, had any intent’to defraud in what was done. The question was asked him:

“What is the fact as to whether there was any intention upon the. part of your bank or of the officers to defraud any person in this matter, so far as you know?”

Objection was made to that and overruled and exception taken. The answer of the witness was:

“There was none.”

It is always proper to ask a person what his intention was where that is material. There can he no fraud without intent. So far as any other officer of the bank was concerned, he simply testified that so far as he knezv there was no fraudulent intent. This note having been altered without the knowledge or consent of the plaintiff and innocently altered, he had a right to bring his action upon the original indebtedness, which he properly did.

There were no errors committed upon the trial to the prejudice of defendant below. The verdict and judgment were correct, and will be affirméd.


author: COOK, J.

text:
    MARSHALING LIENS.
    [Noble (7th) Circuit Court,
    November Term, 1903.]
    Laubie, Cook and Burrows, JJ.
    Caldwell Building Loan Assn. v. J. W. Bigley et al.
    When Lien of Reformed Mortgage Commences.
    Where an action is commenced by the mortgagor against the mortgagee, upon a defectively executed recorded mortgage, for the purpose of having the samé reformed and for sale of the premises: Held, that judgment liens obtained after the commencement of the action and before decree reforming the mortgage, do not have a preference over the mortgage lien, and that the claim of the mortgagor should be first satisfied out of the fund arising from the sale of the property.
    Appeal from court of common pleas of Noble county.
    McGinnis & Morris, for plaintiff:
    The instrument in controversy is an agreement to give a mortgage or it is a defectively executed mortgage. If it be an .agreement to give a mortgage then the following authorities are in point: Hutzler v. Phillips, 4 Am. St. Rep. 700; Cottrell v. Long, 20 Ohio 464; Pomeroy, Equity Secs. 1235 and 1237; 64 Am. St. Rep. 818 note; Love v. Water & Mining Co. 32 Cal. 639 [91 Am. Dec. 602].
    If it be a defectively executed mortgage then the following authorities apply: Lake v. Doud, 10 Ohio 426; Hutzler Bros. v. Phillips, 4 Am. St. Rep. 701, 702.

      Lis pendens. No right in the subject matter of the suit can be acquired in any manner that will be effectual against plaintiff during the pendency of the suit. This is a familiar doctrine and is well settled by numerous cases in Ohio and by statute. Section 5052 Rev.. Stat.; Stout v. Manufacturing & M. Co. 41 W. Va. 339 [23 S. E. Rep. 571 ;• 56 Am. St. Rep. 837].
    Amendment to the petition does not break the continuity of the lien created by the pending suit unless the amendment is a departure from the general purpose and object of the original pleading. 21 Am & Eng. Enc. Law (2 ed.) 617; Stout v. Manufacturing & M. Co. 41 W. Va: 339 [23 S. E. Rep. 571; 56 Am. St. Rep. 837]; International Bank v. Sherman, 101 U. S. 403, 405, 406; Stoddard v. Myers, 8 Ohio 203, 209; Gibbon v. Dougherty, 10 Ohio St. 365, 366.
    H. W. Kuntz, D. S. Spriggs, C. O. Dye, L. B. Frazier, and Okey & Okey, for defendants.
   COOK, J.

On January 14,1902, the defendant, J. N. Bigley, contracted with the plaintiff, The Caldwell Building Loan Association, for a loan of $1,000. On the same day he delivered to plaintiff a bond and mortgage purporting to be -signed by himself and wife in the presence of two witnesses and duly acknowledged for such loan, and the money was paid over to him. As a fact Bigley was the only one that signed the bond and mortgage, he having forged the name of his wife and the two witnesses to the mortgage, as also the name of the notary public to the acknowledgment, and J fraudulently caused the seal of the notary to be attached. The mortgage was left for record with the recorder of the county the same day it was received, January 14, 1902. The defendant, Daniel Swickard, on July 23, 1902, obtained a judgment before the mayor of the village of Caldwell against the defendant, Bigley, and on the same day filed a transcript with the clerk of the court of common pleas of Noble county; caused an execution to be immediately issued from said court and on the same day it was duly levied upon the real estate described in the mortgage given to plaintiff. Alonzo Hall, another defendant, on November 20, 1902, recovered a judgment by consideration of the court of cpmmon pleas of Noble county against the defendant, J. N. Bigley, which was on the same day levied upon the same property. On September 16, 1902, the defendant, Emily Baker, obtained 9. judgment before the same court of common pleas against the defendant, Bigley, which was on the same day levied upon the same property. July 28, 1902, the plaintiff building loan association filed a petition in the court of common pleas of Noble county on its mortgage to foreclose the same and for equitable relief, setting forth that the bond and mortgage was duly signed by the defendant, J. N. Bigley, and purported to be signed by his wife and two witnesses and to be duly acknowledged.

After the levying of the executions as hereinbefore stated, the plaintiff filed an amended petition making said parties defendants to the action, setting forth in detail the facts in relation to the mortgage as to the forgeries, and asking that it might be-reformed; decreed to be a contract for a mortgage, or an equitable lien; also that the premises might be sold as prayed for in the original petition and the proceeds applied to the payment of its claim in preference to all others. To this petition all of said defendants answered, claiming that their liens were superior to plaintiff’s. The property was sold by consent of all parties, the proceeds brought into the court of common pleas and the question to be determined is as to the priority of the liens. The property did not sell for more than sufficient to .pay the claim of plaintiff, and if the claims of defendants or any of them are superior in equity to its claim, the same will not be wholly satisfied.

It must be conceded that the mortgage of plaintiff was wholly ineffectual as a lien against third parties. It being neither executed nor acknowledged in accordance with the statute its record was illegal and gave it no priority as against subsequent execution creditors. Section 4133 Rev. Stat.; Bloom v. Noggle, 4 Ohio St. 45. At the same time it was good as between the parties as a mortgage or a contract for a mortgage, giving the mortgagee a lien upon the property as between the mortgagor and mortgagee. Bloom v. Noggle, supra; Van Thorniley v. Peters, 26 Ohio St. 411.

The question then arises what is the legal effect of the plaintiff commencing its action to enforce its lien upon the property against the defendant, J. N. Bigley, who was the owner of the property. The action was not in personam in any sense, but in rem. It was not for the purpose of obtaining a judgment or other relief against the defendant, but only that its mortgage might be perfected and foreclosed or that the contract of Bigley might be specifically enforced by the sale of the property to pay the claim of plaintiff. It is conceded, as it must be, that the mortgage might be divested of the fraud perpetrated by Bigley upon the association and be reformed so as to make it comport with the true contract made by the parties; but it is insisted that the action has no effect as to third parties until such reformation takes effect by the decree of the court made in the action, and the judgments and levies having been obtained before such decree, that the defendants have the prior lien. In support of this position the decisions of Bloom v. Noggle, supra, and Van Thorniley v. Peters, supra, are invoked. In the latter case it is held: .

“A defective mortgage when reformed will not affect the lien of a judgment rendered between the date of the execution and the reformation of the mortgage.”

In the opinion McIlvaine, J., says, page 474: “1. A mortgage defectively executed is not entitled to record under our registry laws. 2. An unrecorded mortgage, or a defectively executed mortgage, whether recorded or not, does not vest in the mortgagee any interest in the premises, either legal or equitable, as against subsequent purchasers or judgment creditors of the mortgagor. 3. As between the parties to such mortgage, whether it be duly executed and not recorded, or defectively executed and recorded or not, equity will give it effect according to the intention of the parties. 4. A defective mortgage, when reformed, will not affect the' lien of a judgment intervening between the date of the execution and the reformation.”

Not only in this case but in a number of others of the same character decided by the Supreme Court the language used is “when reformed,” but it will be observed that in all the cases in which the language is so used the liens of the third parties attached before the commencement of the action by the party holding the defective mortgage for the enforcement of his lien. Certainly such holding cannot affect the provision of Sec. 5052 Rev. Stat. By that section it is provided:

“When summons has been served or the publication made, the action is pending so as to charge third persons with notice of its pendency; and while pending, no interest can be acquired by third persons in the subject of the action, as against the plaintiff’s title.”

The provision is “while pending, no interest can be acquired by third persons in the subject of the action, as against the plaintiff’s title.” The recovery of a judgment and levying of execution was the acquiring of an interest in the subject of the action against the title of the plaintiff, although that title may have been defective.

In Tolerton v. Williard, 30 Ohio St. 579, it is héld:

“If a petition for divorce and alimony by the wife specially describes certain real estate of the husband, charging it with equities of the wife, "and asking an injunction to prevent alienation pendente lite, and also equitable relief, and the decree therein is such as that from it, it may be found that the court acted on those equities and favorably thereto, the proceedings operate as a lis pendens, and the decree for alimony and settling equities will be a lien on the lands, preferable to that of a mortgagee who had actual notice of the proceedings for divorce and alimony, and whose mortgage was executed and recorded, pending those proceedings.”

No injunction was granted in the action. Neither did the court in the decree find that there were any equities in favor of the wife except what arose out of the marital relation — the responsibility of the husband for the maintenance and support of the wife. Wxdght, J., in the opinion says, page 588:

“But, again, in' the divorce suit, this land was specifically described, an equity in it was claimed, an injunction asked to prevent the husband from disposing of it pendente lite, of all of which Tolerton had notice when he took his mortgage, and in the decree the alimony was fastened upon the land.
“In the case of Hamlin v. Bevans, 7 Ohio (pt. 1) 161, which was a question of priority between judgments, and a decree for alimony, the court say: ‘Where the object of á suit, in law or equity, is to recover specifically a described piece of real estate, the pendency of the suit is held to be notice to all the world of the claim, and a final judgment or decree in his favor overreaches intermediate purchases — that is, purchases made pending the suit. So, if the suit be against a trustee, to affect his title to land as trustee, and a final decree be rendered to that effect, the land is bound from the service of process.’
“In that case, the court observe that the petition for divorce alleged no claim to any specific tract of land.
“It is said that a purchase from a defendant in a bill to enforce an equitable right of any kind, will not confer a valid title. White v. Tudor, 2 Lead. Cas. Eq. (pt. 1) 192.
“In the case before us, the property is described so that any who-chose to inquire might find out precisely what it is.
“In addition to the wife’s equity, her alimony is sought to be charged upon if, and an injunction is asked to prevent any alienation. If that injunction had been allowed, it would not have been any further notice than the mere filing of the petition to Tolerton, the mortgagee. The notice of injunction would not have been served upon him, but upon the husband. These facts, it appears to us, make such-a case that the mortgage must be considered as having been made pendente lite, and that it is a lien inferior to the decree.”

In the original case as stated no injunction was granted. The court made no finding or entered any decree upon the claimed equities of the wife. The petition simply described the land, and the decree was for $5,000 in gross as alimony, and charged the same as a lien upon the land described in the petition; and yet upon petition filed to marshal liens and sell the land the court held, as we have seen, that the claim for alimony took preference over a valid mortgage obtained during the pendency of the suit under the equitable doctrine of lis pendens.

The case of Barry v. Hovey, 30 Ohio St. 344, was much like the case before us. The principal controversy was between two mortgagees holding mortgages from the same mortgagor upon the same real estate. Robert Barry held the first mortgage and it was first recorded, but had but one subscribing witness. The mortgage to John Barry was gtyen after the mortgage to Robert Barry and was duly executed and recorded, but was secured after the suit had been instituted by Robert Barry to reform and correct his mortgage, in which action a defective service of summons had been made. The syllabus of the case is as follows:

“In air action by a mortgagee against a mortgagor, to reform and correct a mistake in a recorded mortgage, which had but one attesting witness, a summons was duly issued to the sheriff, who, without writing indorsed thereon, as required by Sec. 61 of the civil code, appointed one C to serve the same, who served the same as required by law and verified his return, which was indorsed on the writ: Held, that such service and return by C without being duly authorized by an appointment in writing, indorsed on the writ is not such a service as will charge third persons with notice of the pendency of an action as provided in Sec. 78 of the civil code.”

Johnson, J., in the opinion says, page 347:

“The mortgage to Robert Barry though first entered for record, having but one witness, was defectively executed, and did not, as against a. subsequent valid mortgage entered for record, vest any interest either legal or equitable, in the mortgagee. * * * Bloom v. Noggle, 4 Ohio St. 45.
“It follows, therefore, that the mortgage to John M. Barry, which was executed December 28, and entered for record December 30, is paramount to that of Robert Barry, unless the proceedings instituted by him December 21, 1872, to reform and correct his mortgage, which subsequently ripened into a decree to that effect, restores him to that priority to which he would have been entitled if his mortgage had not been defective.
“The court below held that the proceedings by Robert to correct his mortgage were lis pendens by the service made December 26, 1872, as amended at the June term, 1873, so as to charge John M. Barry with notice of its pendency.
“By the terms of the statute John M. Barry’s mortgage took effect December 30. At that date the petition had been filed, and summons issued and returned to the clerk’s office, showing that it had been served in the proper manner by one John H. Camden, but showing no authority in him to make' such service. The summons was directed to the sheriff, but it had no appointment indorsed on it which would authorize Camden to serve it. * * *
“This presents the question, whether a service, made by a private person, under a verbal appointment, or one not indorsed on the writ, is such service as to make the case a pending action as to third persons, and if not, whether the amended return cures the defective service. The code, Sec. 78, provides that: ‘When the summons has been served, or publication made, the action is pending so as to charge third persons with notice of its pendency, and while pending, no interest can be acquired by third persons in the subject matter thereof as against the plaintiff’s title.’ In this case the plaintiff’s title was an equitable one. If his action was pending, by virtue of the service made by Camden on December 26, then there is no error in this judgment, otherwise there is, unless the amended return cures the defect.”

The learned judge then proceeds to show that the action was not commenced at the time John M. Barry took his mortgage and had the same recorded, by reason of the defective service of summons, and that the' return could not be amended in the manner attempted after decree.

It would seem as if this case was conclusive upon the question; that after service of summons duly made and returned that no interest could be acquired by a third person in the subject matter of the action, as against plaintiff’s claim, and there is no question but that in this action summons was duly issued, served and returned before any interest was obtained by the execution creditors.

From these authorities it seems to us that what is .said in the first paragraph of the syllabus of Van Thorniley v. Peters, supra, with reference to the reformation of the instrument, has reference to the action for reformation and was in no way intended to qualify the generally accepted interpretation of Sec. 78 of the code of civil procedure, now Sec. 5052 Rev. Stat.

Another question is made, and that is that the amended petition not being filed until the judgment creditors’ liens attached no rights were acqrtired under Sec. 5052 Rev. Stat. As we have stated, the original petition was to secure plaintiff’s rights in the real estate, which was specifically described. The object was to have its equities in the same determined. The amended petition was for practically the same purpose. There was no departure. The facts were simply set out more in detail and in no manner changed the cause of action. In the.case of Stoddard v. Myers, 8 Ohio 203, the syllabus reads:

“Judgment reversed pending a bill to subject land to satisfy it, and again recovered, the bill being continued, and a supplemental bill filed to reach the case of the second judgment, an alienation after the reversal and before the second recovery, is affected by the Us pendens

In the opinion Lane, J., says, page 209 :

“The general rule that no alienation of property is permitted whilst a suit is pending in relation to it, either in law or equity, is familiar and well settled. Ludlow v. Kidd, 3 Ohio 541, 542; Bennet v. Williams, 5 Ohio 461, 462.

“It is assumed that when the right to recover, in the bill in equity, was taken away, by the reversal of the judgment, the suit ceased to be pending, so far as to bind the property. We are not satisfied that this position is a sound one. No such distinction is to be found in the books. But the doctrine seems plain that by the institution of a suit, the subject of litigation is placed beyond the parties to it; that whilst the suit continues in court, it holds the property to respond to the final judgment or decree.

This suit, instituted in 1831, was regularly continued until the final decree in 1835. The supplemental bill was engrafted into the original bill, and became identified with it. The .whole was a lis pendens, effectually preventing an intermediate alienation.”

It follows that the decree must be that the claim of defendant, Daniel Swickard, be first paid out of the fund after payment of costs, and, the balance not being sufficient, to pay the plaintiff’s claim in full, that the residue be paid over to it. Decree accordingly.


text:
    INTOXICATING LIQUORS — ■AFFIDAVIT—TRIAL.
    [Belmont (7th) Circuit Court,
    December Term, 1903.]
    Laubie, Cook and'Burrows, JJ.
    Arthur Stewart v. State.
    Necessary Elements in Affidavit for Selling Intoxicating Liquors Contrary to Law.
    An affidavit filed before a mayor for the sale of intoxicating liquor, contraty to lay; under the Beal local option law (Sec. 4364-20b Rev. Stat.), should set forth the name of the party to whom the intoxicating liquor was sold, or that the name was unknown; but an objection to the affidavit on that ground must be pleaded before final trial in the mayor’s court or the same is waived.
    Error to the court of common pleas of Belmont county.
    G. A. Colpitts and W. O. Chappell, for plaintiff in error.
    W. F. Smith and C. J. Howard, for defendant in error.
   COOK, J.

Plaintiff in error asks for the reversal of the judgments below upon one ground only, and that is that the affidavit upon which he was convicted was not sufficient in law.

The affidavit was filed before the mayor of the village of Barnesville, this county, and charged the defendant, Stewart, with selling intoxicating liquor contrary to Sec. 4364-20b Rev. Stat.,. known as the “Beal Act.” The affidavit was for the unlawful selling under the section, and not for keeping a place for the unlawful sale of intoxicating liquors.

The defendant was found guilty by the mayor and sentenced to pay a fine of $200 .and costs, it being his first offense. Error was prosecuted to the common pleas court, and the judgment of the mayor affirmed, and the case is before this court to reverse the judgment of the lower courts.

The objection to the affidavit is that it does not state the party to whom the liquor was sold, neither does it sdt forth that the name of the party was unknown to affiant.

The affidavit not setting forth that the defendant had been convicted before under this section of the statute, the mayor had final jurisdiction, and the affidavit should therefore be substantially as formal in charging the offense as an indictment found by a grand jury.

We think the affidavit should have set forth the name of the party to whom the intoxicating liquor was alleged to have been sold. The accused was entitled to demand that the affidavit made against him should inform him of the nature of the charge specifically and definitely, so that he might precisely know what the charge was and be prepared to make his defense. He should not be required to meet a charge of selling .to A, B or C, or some other person, when the particular person was known to the affiant. Furthermore, the affidavit should- be so definite that there would be no difficulty, in case of another action for the same offense, in pleading former acquittal or conviction. It is true it might be shown upon the trial of another action who the party was to whom the sale was made by introducing the evidence adduced in the former action, but'that would be attended with much difficulty, and, in some cases, impossible. Our Supreme Court has pronounced in no uncertain terms, and properly so, on the necessity of definiteness in criminal accusations for both'these reasons.

We are aware that recent text writers-on criminal proceedings take a decided position that it is not necessary to set forth the name of the party to whom the intoxicating liquor is sold, and they are supported by the decisions of many very creditable courts (2 McClain, Cr. Law Sec. 1274), but we think tire better authorities are the other way.

The statutes of our state, by inference at least, indicate that it is necessary to -set forth the name of the party. Section 7222 Rev. Stat. ■ provides that in an indictment for the sale of intoxicating liquor “it shall not be necessary to allege the kind of liquor sold, nor to describe the place where soldand in an indictment for keeping a place where intoxicating liquors are sold in violation of law', “it shall not be necessary to. allege the name of the person to whom intoxicating liquor was sold.” This is almost equivalent to saying that for a- sale it would be necessary to allege the name of the person.

In Gordon v. State, 46 Ohio St. 607, 625 [23 N. E. Rep. 63; 6 L. R. A. 749], it is said:

“There was a motion to quash the indictment, on the ground, that it did not set forth the name or names of any person or persons to whom the sale of intoxicating liquors was made, * * * . The indictment alleged, that the accused unlawfully sold intoxicating liquors as a beverage, to divers persons whose names to the jurors were unknown. This we deem sufficient. In those caáes in which thp names of third persons cannot be ascertained, they may be thus designated, in the usual form, as ‘persons whose names are to the jurors unknown.’ ”

In Commonwealth v. Dean, 38 Mass. (21 Pick.) 334, it was held, upon a motion to quash, that:

“A. complaint before a justice of the peace, intended to be the basis of a final judgment, alleging that the defendant, without license, ‘did sell spirituous and fermented liquors in a shop used for the purpose of tippling or gaming or in which tippling and gaming is allowed,’ is fatally defective, inasmuch as it did not state to whom the sale was made, or that it was made to á person unknown.”

The accused, plaintiff in error, went to trial without making any objection to the affidavit qn this ground. He filed a motion to quash the affidavit (two of them), but for entirely different reasons; that the act was unconstitutional, etc., but there was nothing in the motions indicating that he objected because the name of the party to whom the liquor was sold was not set out in the affidavit. After judgment he made no complaint, either in the motion for a new trial which he filed, or by motion for arrest of judgment. Will he now be permitted to complain for the first time in a proceeding in error ? We think not. He cannot experiment with a trial, and when the judgment is against him then take advantage of a defect of this character. The defect is a matter of form in stating the offense, and while it would be fatal as against a motion before trial, we think that after judgment it is unimportant; at least, the defendant waived the defect. Had the defect been in an indictment he must have raised it by motion to quash, or it would have been waived. Section 221-9 Rev. Stat. Such is the direct holding of the Supreme Court of Massachusetts in the case of Green v. Commonwealth, 111 Mass. 417.

The judgment of the court of common pleas in affirming the judgment of the mayor’s court is affirmed.