author: Kinkade, J.

text:
    TERMINATION OF GUAR.DIANSHIP.
    Circuit Court of Lucas County.
    Benjamin F. Reno v. George R. Love et al.

    Decided, December 2, 1911.

      Guardian and Ward — Attempt by Ward to Usurp Prerogative of Guardian — Discharge of Insane Patient from Hospital Does Not Terminate Guardianship — Presumption as to Jurisdiction of Probate Court.

    The discharge ol a patient from a hospital for the insane neither vacates an order of the probate court appointing a guardian for said patient, nor provides a basis for impeaching the appointment in a reviewing court, in the absence of an affirmative showing in the record of resignation or discharge; and where the patient subsequent to his release from the hospital files an action in his own name for damages against those who procured his incarceration, it is not error on the part of the court in which the action was brought to substitute the guardian as the party plaintiff and permit him to dismiss the action.

      Benjamin F. Reno, in person.

      C.S. Northup, for the defendants served with process except defendants Chambers and ITurlbut.

       Affirmed without opinion, Reno v. Love et al, 88 Ohio State, 623.

   Kinkade, J.

Mr. Reno brought an action in the court of common pleas against a large number of defendants to recover damages for his illegal arrest and illegal confinement for over four years in the Toledo State Hospital for the insane. Some of the defendants were state officials, some were county officials and all were charged with having conspired and combined to accomplish the arrest and imprisonment mentioned.

One of the defendants filed a motion in the ease asking the court to substitute Thomas Biddle, guardian of Mr. Reno, as plaintiff. This motion was heard and granted. Mr. Biddle thereupon dismissed the action. Reno objected to the substitution and dismissal of the action and preserved his exception in due form. He now files a petition in error, with bill of exceptions containing all the evidence heard on the motion, in this court to reverse the judgment of the court of common pleas in dismissing the action.

The trial court on hearing the motion had before it the affidavit of Mr. Reno and the testimony of two physicians, both of whom said Mr. Reno was insane. The trial judge stated the question of the plaintiff’s sanity or insanity was not an issue on the hearing of the motion, and that the only question before the court was whether the Probate Court of Luca.s County had, before the commencement of the present action, appointed Mr. Biddle as guardian of Mr. Reno, and whether this guardianship had been terminated in any manner provided by law. Thereupon Mr. Reno, as shown by the bill of exceptions, admitted in open court that the records of the Probate Court of Lucas County, Ohio, did show that Mr. Biddle had been appointed by that court as his guardian prior to the filing of the petition in this ease, and that said records did not show that such guardian had resigned or had been discharged by the probate court. At the same time Mr. Reno informed the trial court that the records of said probate court also showed that prior to the beginning of this action, he had been discharged from the state hospital for the insane. Thereupon the order of substitution and dismissal was made.

The plaintiff in error claims that the evidence before the trial court as shown in the bill of exceptions failed to show affirmatively that the probate court had jurisdiction over his person when the appointment of Biddle as his guardian was made, and hence he was at liberty in this action, although admitting as he did that the records of the probate court did show the appointment, to treat the action of the probate court as a nullity and wholly disregard it. He further contends that even if this proposition be not correct, still his guardian was discharged by reason of his own discharge from the hospital and hence the guardianship' no longer had any force.

We can not agree with either of these propositions. IT-is discharge from the hospital could not of itself terminate the guardianship. The guardian may have been appointed on grounds other than those on which Mr. Reno was sent to the hospital, but whether this be so or not, a discharge from the hospital can not be held as vacating the order of the probate court appointing the guardian. Section 11010, General Code, which corresponds with Section 6311, Revised Statutes, provides the manner in which guardians may be discharged and reads as follows:

“Section 11010. When the probate judge is satisfied that an idiot, imbecile, or lunatic, or a person as to whom guardianship has been granted as such, is restored to reason, or that letters of guardianship have been improperly issued, he shall make an entry upon the journal that such guardianship terminate. Thereupon it shall cease, and the accounts of the guardian be settled by the court.”

The position taken here in argument that the judgment and orders of the probate court are not attended by the presumption that the court had jurisdiction to enter them (nothing to the contrary appearing in the record), and that the judgments and orders of the probate court may be collaterally impeached, is equally untenable. The law of Ohio on this subject is clearly stated in the ease of Shroyer v. Richmond, 16 Ohio St., 455. I quote paragraphs six and seven of the syllabus:

“6. The probate courts of this state are, in the fullest sense, courts of record; they belong to the class whose records import absolute verity, that are competent to decide on their own jurisdiction, and to exercise it to final judgment, without setting forth the facts and evidence on which it is rendered..
‘ ‘ 7. Hence; an order appointing a guardian, made by a probate court, in the exercise of jurisdiction, can not be collaterally impeached. The record showing nothing to the contrary, it will be conclusively presumed, in all collateral proceedings, that such order was made upon full proof of all the facts necessary to authorize it.”

The Supreme Court has several times followed this decision. See Hoffman v. Fleming, 66 Ohio St., 163; Fisher v. Lanning, 76 Ohio St., 189, 198; Union Sav. Bank & Tr. Co. v. Telegraph Co., 79 Ohio St., 89, 100.

The admission in open court bjr Mr. Reno, as shown in the bill of exceptions, fully justified the court in ordering the substitution of Biddle as plaintiff in the action. This being true, it follows there was no prejudicial error in allowing Mr. Biddle to dismiss the action. . We express no opinion on any otheif matter involved in the action as brought. The judgment of the court of common pleas will be affirmed.

Wildman, J., and Richards, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    CIRCUMSTANCES UNDER WHICH ASSIGNMENT AND DELIVERY IS NOT A GIFT IN PRAESENTI.
    Circuit Court of Cuyahoga County.
    The American Trust Company v. Ida M. Vincent and Norton T. Horr, Administrator of the Estate of John G. Miller, Deceased.
    Decided, December 24, 1903.

      Gifts — Gifts In Praesenti are Invalid When Not Accompanied by Unconditional Delivery.

    Where, at the same time that life insurance policies are assigned and delivered to a person, the assignor executes and delivers to the assignee his promissory note due with interest at a fixed time after date, and at the same time an agreement is executed in which it is recited that the assignor has borrowed from the assignee the amount for which the note is given and assigned to her certain insurance policies as collateral security, which were to be hers absolutely in case the assignor died before the assignee — Held: The three acts constitute one entire transaction of a commercial nature, and that the assignment and delivery of the insurance policies does not amount to a gift in praesenti.

      M. B. & S. H. Johnson, for plaintiff.

      Norton T. TJorr and White, Johnson, McCaslin & Common, contra.

      Winch, J.; Hale, J., and Marvin, J., concur.
   The controversy in this case is between the defendants, Ida M. Vincent, claiming a fund arising from insurance policies on the life of John C. Miller, deceased, as a gift made to her by said Miller in his lifetime, and the defendant, Norton T. Horr, administrator of the estate of said Miller, claiming the same fund as part of the assets of said estate.

The claim of Ida M. Vincent is set forth in her cross-petition in the following language:

1 "This defendant is the widow of Clinton A. Vincent, who had been the son-in-law of said John C. Miller, and who was from the time of his marriage with the daughter of the said John C. Miller, throughout the lifetime of the said daughter and thereafter, during the inter-marriage between this defendant and the said Clinton A. Vincent, looked upon and treated by the said John C. Miller and his wife, Martha, as though he were their natural son, and from the time of the inter-marriage of this defendant with the said Vincent, she was looked upon and treated by the said John C. Miller and his wife, until the latter died, and until the death of the said John C. Miller, as though she were in truth and in fact their daughter by blood, and she, in all respects conducted herself toward them, and each of them, as though she were their natural daughter, and there were many interchanges of good offices and kindness and affection between the said John C. Miller and his wife and this defendant.
“On the 14th day of April, 1898, said John C. Miller requested this defendant to lend him the sum of two thousand dollars, as a matter of friendship and kindness. This defendant was then a widow, in poor circumstances, with minor children, of whom she was the only support, and this two thousand dollars was two thousand dollars coming from insurance upon the life of her late husband, said Clinton A. Vincent, and belonging to her and her children.
“Owing to the friendly relations existing between the said John C. Miller and this defendant, she lent him said two thousand dollars, taking from him his promissory note, payable five years after date, bearing interest at the rate of six per cent. Paid John C. Miller was then sixty years of age, and in good health. He was the owner and holder of three policies of insurance upon his life; one in the Connecticut Mutual Life Insurance Company for four thousand dollars; one in the Provident Savings & Life Insurance Company for one thousand dollars, and another in the same society for two thousand dollars.
“Said John C. Miller, in consideration of said loan, and of the friendship and affection existing between him and this defendant, then agreed to transfer absolutely to this defendant said three policies — the same to be hers absolutely; but in the event of her dying before said Miller, then said Miller should have the right to redeem said policies by paying to her estate, the sum of two thousand dollars.
“Said Miller thereupon, on said date; executed and delivered to this defendant absolute assignments, in due form, of all three of said policies and said Miller and this defendant also on that date signed a written agreement, which was intended to, and, as this defendant believes, does express the agreement herein-before set forth.
“At the same time said Miller delivered to this defendant said three policies, and they have remained in her possession ever since, with the exception about to be stated.
“Said assignments were at once transmitted to the respective companies, and approved by them. The amount so loaned to the said Miller was more than enough, as this defendant believes, and avers the fact to be, to pay all his then existing debts.
“Nearly a year after the matters hereinbefore set forth said John C. Miller again asked this defendant, as a matter of friendship, to let him take one of these policies, so that he could secure the sum of four hundred and sixty-five dollars borrowed from Adolph Mayer; and as a matter of kindness to one for whom she had great affection, and who had much affection for her, without consideration, she consented thereto, and delivered to him said two thousand dollar policy, and he borrowed said sum of four hundred and sixty-five dollars from said Adolph Mayer, and assigned to him said policy as security therefor, and immediately thereupon executed to this defendant another absolute assignment of said policy, subject only to the lien created by said pledge to said Adolph Mayer, of said policy, and said last-mentioned assignment was at once transmitted to the insurance company, which accepted it and agreed to act upon the same.
‘ ‘ Said Miller in no way obligated himself to pay the premiums on said insurance.
“This defendant has demanded, claims the entire amount in the possession of said plaintiff as due to her by reason of the ■premises.”
The agreement of April 14, 1898, is as follows:
“Cleveland, April 14, 1898.
“Article of agreement by and between Mrs. Ida M. Yincent and John C. Miller of Cleveland, Ohio.
“Whereas the said John C. Miller has this day borrowed from •the said Mrs. Ida M. Vincent the sum of $2,000 to bear 6% interest from date, and as collateral security has assigned the following life insurance policies to the said Mrs. Ida M. Vincent: policy 163119 in the Connecticut Mutual Life Insurance Company of Hartford, Connecticut, for $4,000; also policies No. 74371 and 49788 in the Provident Savings & Life Insurance Society of New York. The condition of the assignment of the above policies are that if the said John C. Miller dies before the said Mrs. Ida M. Vincent, the policies shall he hers, and I hereby authorize the above companies to pay said policies in full to Mrs. Ida M. Vincent; but in the event of her, Mrs. Ida M. Vincent’s death before the said John C. Miller, then said policies to revert back to the said John C. Miller upon the condition that the said John C. Miller shall pay to the estate of Ida M. Vincent the sum of two thousand dollars.
‘/kiss. Ida M.' Vincent.
“ (Signed) John C. Miller.
“Witness: W. A. Sanders.
“4/14/98.”

The sole claim of counsel for Ida M. Vincent in the argument of this case proceeded upon the following lines: that the transaction of April 14, 1898, between Miller and Mrs. Vincent was a valid gift inter vivos; that by the assignments endorsed on the policies from the donor to the donee, which took effect immediately, the gift was fully executed by the delivery of said policies to Mrs. Vincent at the time of their transfer; that they were accepted at the time by her as a gift; that the gift being so perfected by delivery and acceptance, the condition annexed that should Mrs. Vincent die before Miller, then said Miller should have the right to redeem said policies by paying to her estate the sum of two thousand dollars, does not impair the validity of the gift.

In support of the last proposition that the condition annexed does not impair the validity of a gift, counsel cited numerous cases which we have examined. Most of said cases come more properly under the classification of voluntary trusts rather than of gifts; in most of them there was delivery of property to a third person to hold in trust and pay upon certain conditions to the object of the donor’s bounty; in some of them the donor constituted himself trustee.

Hazerman v. Wigint, 108 Mich., 192: “The delivery of a mortgage by its owner to one person with instructions to deliver the same to another after the owner’s death, is a sufficient delivery to meet the requirement of a valid gift inter vwos.”

Bostwick v. Mahaffy, 48 Mich., 342: “Property put by a father in the hands of a third party to be delivered to his daughter upon his death, is sufficiently appropriated to belong to her after his death occurs. ’ ’

Ruiz v. Dow, 113 Cal., 490: In this ease a deed of real and personal property was made by a husband to his wife, and delivered to a third party for her benefit, with instructions to record it after his decease. Such delivery to a third person was held valid and sufficient to vest title in the wife to all the real and personal property described in the deed.

Greene v. Tulare, 52 N. J. Eq., 173: Deposit of bonds by Tulare with C. S. G. with instructions to deliver them “in case of my death” to Miss U. P. and her sister A. C. The ladies mentioned were held entitled to the bonds after T’s death. This case also cites the case of Moore v. Darton, 46 De G. & S., 517, where the facts were as follows: A Miss Darton loaned to Moore (the plaintiff) £100, and he signed the following document: “Received of Miss Darton, for the use of Anna Dye, £100, to be paid her at M]iss Darton’s death, but the interest at four per cent, to be paid to Miss Darton. ’ ’ Underneath the same was written, ‘ ‘ I approve the above. Betty Darton.” This document was given to Miss Darton. The money was not paid her in her lifetime. Held by Vice-Cbancelor Knight Bruce that Moore was a trustee for Anna Dye, for £100.

Wyble v. McPherson, 52 Ind., 393: Delivery by a father of certain bonds to a third person with instructions to give the bonds to certain children upon the father’s death. The trust was upheld.

Blanchard v. Sheldon, 43 Vt., 512: “The defendant’s testatrix in her lifetime delivered to Henry L. Sheldon $300 and took a writing as follows: ‘For value received I promise to pay Auretta Ballou three hundred dollars with annual interest, on demand, if she called for it before she deceased, if not, to be paid to Daniel M. Blanchard, by her order. (Signed) Henry L. Sheldon. Miranda Hines.’

“This paper she retained and it was with her other papers at her decease, and she had collected no part of said amount. Her intention was in taking this paper to have it drawn so that said Daniel would have whatever she should not use of the $300. Held-. That the $300 became vested in said Daniel, subject to be defeated only by said Aurilla’s taking some further action in regard to it; and she never having taken any, the transaction can be held as a gift inter vivos. ’ ’

On page 514 of the opinion Judge Ross says:

‘ ‘ The delivery in a donatio causa mortis may be to a third person to hold in trust for the beneficiary, as was held in Caldwell, Admr., v. Renfrew, 33 Vt., 213, and Way v. Emery, not yet reported. So a gift inter vivos may be delivered to a third person to hold for the donee. To constitute a valid gift inter vivos, there must be both a delivery of the gift by the doner to the donee, or to some one for the donee, and an acceptance by the donee. In this case there was a delivery of the $300 by the donor to Henry L. Sheldon, for the plaintiff. The law presumes the acceptance of a gift by the donee when it is unaccompanied by any condition to be performed by the donee. Nor do we see, upon principle, how a gift, if absolute, and delivered to a third person for the donee, but not to be delivered to the donee till the happening of some event, or if liable to be wholly defeated if a certain event occurs, is any the less a valid gift.”

This case is cited rather at length, because it is one of the cases counsel relies upon as authority fór his general claim that a gift may be made upon condition. It will be noticed, however, that the judge delivering the opinion calls particular attention to the fact that the delivery of the gift was to a third person, for the benefit of the donee, and that the third person or trustee held possession of the money until all conditions had been complied with.

Davis v. Hey, 125 Mass., 590: A depositor in a savings bank delivered her bank book, accompanied by an assignment of her deposits to B., upon an oral agreement that ,B. should draw for her what money she wanted during her lifetime, and pay the balance, if any, left at her death to her son. In pursuance of this agreement B. paid to A. certain sums of money before her death, and the balance remaining after her death he paid to her son. Held: That the delivery and assignment to B. constituted a valid gift.

Kendrick v. Bay, 173 Mass., 305: “A trust which has been established in favor of B. in the proceeds of a policy of insurance on the life of C. payable ‘to and for the sole and separate use and benefit of A., trustee,’ is not inoperative as an attempted testamentary disposition of property by C.”

The foregoing cases all have the incident of a delivery to a third person as trustee for beneficiaries named. The following cases cited by counsel for Mrs. Vincent illustrate the creation of a trust in the donor himself:

Ray v. Simmons, 11 R. I., 266: B. deposited in a savings bank certain moneys in his own name as trustee for R. ,B. gave the banik book to R., who returned it to B., in whose control it remained. Held: that the trust was completely constituted. Held, further, that the trust being constituted, the fact that it was voluntary, was no reason for refusing relief. To constitute a trust it is enough if the owner of property conveys it to another in trust, or if the owner of personalty unequivocally declare, either in writing or orally, that he holds it in praesenti in trust for another.

Scrivens v. North Easton Savings Bank, 166 Mass.. 255, is like the Rhode Island case, the controversy being over a deposit by “A. in trust for B., payable in case of my death to B.”

Branch v. Byrd, 15 N. C., 142: The court in this case construed an informal deed of slaves, wherein a life estate therein was renewed in the grantor and held that the intention to pass the chattels in absolute property to the donees, immediately upon the execution of the deed was explicitly declared, there was no condition in the gift; the gift wras of the slaves subject to a life estate reserved.

But the case most nearly sustaining the contention of counsel for Mrs. Vincent is Schollmier v. Schoendelen, 78 Iowa, 426, in which the facts were as follows:

“Plaintiff’s intestate had a deposit in a bank evidenced by entries in her pass book. At the end of the account she procured the cashier to write as follows: ‘Pay to S. and H. all of the within deposit after ray decease/ and signed her name thereto. After this she neither deposited any more money nor drew upon the deposits already made. Subsequent to the assignment, and before her death, the bank book was in the possession of S. and H., and after her death they drew the money. Held: 1. That the writing was in terms a full assignment of the amount shown by the book to be due at the time it was made, and not of the amount which should be due at the death of the assignor, and that if it was treated by the assignor as a completed transaction it passed a present interest in the bank account, and was not vulnerable to the objection that it was of a testamentary character, and therefore void, because not executed in the manner provided by law for such instruments. 2. The assignment in such ease having been of the whole deposit, and the bank having had notice thereof, and having a rule that deposits evidenced by a bank book could be drawn out only upon the production of the book — Held ■. That if the book was delivered by the assignor to the assignees for the purpose of perfecting the assignment, it became irrevocable, and bound the bank to hold the deposit for payment to the assignees upon the death of the assignor.”

In the opinion Judge Robinson, who decided the case, distinguishes it from the case of Basket v. Hassell, 107 U. S., 602, and as the latter case is much relied upon by counsel for the administrator in this case, it is proper to quote what Judge Robinson says on page 130 of his opinon about the Basket case :

“It is contended on the part of appellee that the assignment was so drawn as to be revocable, and the case of Basket v. Hassell, 107 U. S., 602, is cited as sustaining that position. In that case a certificate of deposit was endorsed by its owner during his last sickness as follows: ‘ Pay to Martin Basket, of Henderson, Kentucky, no one else; then not till my death. My life seems to be uncertain. I may live through this spell. Then I will attend to it myself. H. M. Chaney.’ After making this endorsement Chaney delivered the certificate to Basket, and died. The court speaks of this transaction as being, in substance, not an assignment of the fund on deposit, but a check upon the bank against a deposit, which, as is shown by all the authorities, and upon the nature of the case, can not be valid as a donatio mortis causa, even where it is payable in praesenti, unless paid or accepted while the donor is alive. But there is a marked difference between the effect of the endorsement in that ease and the assignment in this. While in that ease the endorsed certificate was delivered, yet the language of the endorsement showed clearly that it was not to take effect in case the endorser recovered. As stated by the court, the donor attached to his endorsement and delivery a condition precedent which must happen before it became a gift. In this case the conditions related to the time when the interest transferred might be enjoyed, and not to its transfer.”

Now let us see if the case at bar squares itself with this Iowa case. To construe the transaction we must consider its elements.

There were three things done by Miller on April 14, 1898; first, he gave Mrs. Vincent his note for $2,000 payable to her order five years after date, with interest at six per cent.; second, he assigned the policies to her and delivered them to her; third, he executed the agreement which is above set out in full. It is not claimed that these three things were done in the order named, but that these three things done were parts of one transaction and must be construed together. The promissory note given is an important element in the matter. It gives a commercial aspect to the affair which can not be overlooked. The assignment and delivery of the policies, taken in connection with the note, which was to become due on a day fixed, is fully explained by the statement that the policies were collateral to the note. Had there been no note given, the assignment and delivery of the policies taken in connection with the written agreement could be construed as consummating and perfecting a gift. Delivery is necessary to a valid gift and realizing this counsel for Mrs. Vincent has urged strongly that the assignment and delivery of the policies to Mrs. Vincent was for the purpose of perfecting the gift; that thereby a gift in praesenti was made, the eonditon attached as to Miller’s dying first relating only to the time when the interest transferred might be enjoyed and not to its transfer.

We think the transaction should not be construed so favorably for the claim of a gift. It has been said by a judge of the ¡Supreme Court of this state that “gifts” inter vivos, like gifts causa mortis, are watched with caution by the courts, and to support them clear and convincing evidence is required. ’ ’ Flan ders v. Blandy, 45 O. S., 108. The mere fact that Miller delivered the policies to Mrs. Vincent and that she had possession of them after his death, raises no presumption in favor of a gift. Nor is the testimony introduced as to the relation of the parties and the statements made by Miller at the time “clear and convincing proof” that these policies were assigned and delivered to Mrs. Vincent with the intention that thereby he completed a gift in praesenti to her. The intention to make a gift requires no such oral testimony to prove it; it is shown by the writing. The point in controversy is whether a gift really was made and fully consummated. All the evidence must be considered. The loan of money the giving of a note and the statement in the agreement itself that Miller “as collateral security has assigned the following life insurance policies to Mrs. Ida M. Vincent,” has more convincing force with us than such statements of witnesses and we conclude that in this case there has been a failure to prove that the delivery of the policies was a delivery of a gift.

This conclusion is further warranted by the language of the agreement, bearing in mind all the time that Mrs. Vincent held Miller’s note. Upon this view of the matter we adopt the contention of counsel for the administrator, which is as follows:

The meaning o'f the contract is that Mrs. Vincent loans $2,000 to Miller; he gives her his note therefor and pledges the policies as collateral security for the payment of the note. Then, intending to give her the policies, Miller adds that if he dies first she shall have them. To this business transaction a gift was added, but to make the gift, Miller adds in the contract that if he dies first “the policies shall be hers.” The very nature of the transaction is such that he could have no other intent than to make her a gift at the time of his death. The contract gave to Mrs. Vincent the legal title to the policies and left Miller the equity of redemption and the provision in regard to her having the policies at his death was simply to transfer to her his equity if the debt was not paid prior to his death. There was no present giving of the policies; the language of the agreement looks entirely to the future. Being a promise to give and not a gift in praesenti, and the promise to be fulfilled at the donor’s death, it is testamentary in character and void.. Basket v. Hassel, 107 U. S.; 602.

Having reached this conclusion with reference to the claims urged by counsel for Mrs. Vincent, it is unnecessary to consider the questions raised by the administrator as to the rights of creditors of Miller’s estate. There being no valid gift to Mrs. Vincent, the fund in controversy should be paid over to the administrator, and decree may be drawn accordingly.

Judgment for defendant, Norton T. Horr, administrator.


text:
    PAROL EVIDENCE IN EXPLANATION OF CIRCUMSTANCES SURROUNDING A CONTRACT.
    Circuit Court of Cuyahoga County.
    The Cheboygan Dredge & Dock Company v. L. P. & J. A. Smith, Partners.
    Decided, February 16, 1903.

      Parol Evidence — Custom, Among Contractors Admissible.

    In an action brought by a sub-contractor to recover an amount claimed to be due under a written contract, parol evidence of a custom among contractors by which the sub-contractor assumes the burden of providing board, conveyances, etc., for agents, engineers and surveyors of themne for whom the principal contractor is doing the work, is admissible in evidence, not to vary the written contract, but to explain the surrounding facts and circumstances under which the contract was made.

      A. W. Lamson, for plaintiff in error.

      Goulder, Holden ■<& Masten, contra.
    Hale, J.; Winch, J., and Marvin, J., concur.
    Error to court of common pleas.
   On the 31st day of December, 1892, the defendants entered into a contract with the United States, whereby they undertook to excavate a ship channel of a certain depth, at the mouth of the Detroit river. The contract contains specific specifications as to the work to be done and the manner in which it was to be done, and, among other things, contains the following:

‘1 The order of the work will be determined by the United States agent in charge, and his instructions shall be observed by the contractor and his employees. When required by the U. S. agent in charge, the contractor shall, without additional compensation, furnish all necessary labor, materials and appliances for placing and replacing suitable stakes and buoys for use in making surveys for estimates, and for marking the channel. He shall also, without additional compensation, furnish the use of a tug when needed for towing the sounding rafts or scows, conveying engineers, inspectors, and other employees of the United States, and generally for all purposes connected with the inspection and supervision of the work. When required by the IT. S. engineer in charge, all agents or inspectors of the United States employed on or about the work shall have meals and sleeping accommodations furnished by the contractor at a reasonable price, approved by the U. S. engineer in charge, and paid for by the United States.”

On or about the 15th of March, 1894, the defendants entered into a contract with the plaintiffs as follows:

“Memorandum of Agreement Made this 15th day of March, A. D. 1894, by and between L. P. & J. A. Smith, party of the first part, and the Cheboygan Dredge & Dock Company, party of the second part.
“Witnesseth: That the party of the second part hereby agrees to dig and remove, for the said party of the first part, three hundred and fifty thousand (350,000) cubic yards of material from what is known as Bar Point, being 'The Eighth Section of the Ship Channel 20 and 21 feet deep, connecting waters of the Great Lakes between Chicago, Duluth & Buffalo.’ The aforesaid excavation is to be made in conformity with the contract said party of the first part have with the United States Government under date of December 31st, 1892, for the excavation and removal of material from said eighth section of said ship channel.
‘ ‘ Said party of the second part is to commence digging on or before the fifteenth day of May, 1894, and to continue working with at least one dredge, until the whole quantity herein specified has been excavated in accordance with the afore-mentioned contract.
“For the above work party of the first part is to pay the party of the second part at the rate of sixteen (16) cents per cubic yard, scow measurement. Said payments to be made in accordance with the estimates furnished by the United States Government, and as soon as said party of the first part receive pay for same.
“Party of the second part hereby agrees to abstain from doing any work in Cleveland or vicinity, and further, agrees to abstain from assisting anyone else, to do any work in Cleveland or vicinity.
“In AAUtness AYitereof, we have hereunto set our hands and seals the day and year first above written.
“ L. P. & J. A. Smith,
‘ ‘ The Cheboygan Dredge and Dock Co.,
“By Conrad Starke.”

This action was prosecuted in the court of common pleas by the plaintiff in error to recover of the defendants a sum claimed to be due it under this last contract and for work performed thereunder.

The defendants in error denied that there was any amount due the plaintiff at the time of the commencement of the. action. The real controversy between the parties was, whether or not the plaintiff in error should bear its proportion of the expenses provided for in the specifications above quoted, which the defendants in error agreed, in its contract with the United States, to bear. The contract between the plaintiffs and the defendant did not specifically provide upon that subject, and, on the trial, evidence was offered, ana permitted to go to the inrv over the objections of the plaintiff in error, tending to show a custom between contractors and sub-contractors to the effect that the sub-contractor should bear the proportion of such expenses which the work performed by the sub-contractor bore to the entire work to be done.

The bill of exceptions does not contain all the testimony offered on the trial. It is insisted, however, that- the court erred in permitting this testimony to go to the jury: first, on the ground that, no custom was pleaded by the defendant; and second, that a contract can not be varied or added to by the proof of such custom. For the purpose for which this custom was sought to be established by the evidence, it is quite clear that it was not essential that it be pleaded. It is also clear that if its purpose was simply to vary or acid to the written contract, it would be incompetent; but such was not its ptirpose.

It was competent to bring before the jury the circumstances surrounding the parties and the conditions under which the contract was made, and to enable the jury to rightfully interpret the contract signed by the parties.

Without attempting to recite the authorities cited by the parties upon this proposition, most of which have been reviewed by us, we hold that this testimony for the purposes for which it was offered, was competent and that there was no error in its admission. Possibly, some of the questions submitted were somewhat objectionable, biff, in that regard, we see no substantial error for which the judgment should be reversed. These results apply to all objections made to the testimony offered upon this subject.

There ivas no substantial error for Avhich the judgment should be reversed, in the rulings of the court upon the admission or exclusion of evidence and, if this evidence was competent, the charge of the court was unobjectionable and fairly covered the issues submitted upon this point.

Whether the testimony offered and permitted to go to the jury, was sufficient to establish the custom claimed by the defendants in error with such certainty as to be available to them, is not now before the court, as the bill of exceptions does not contain the entire testimony.

There was no error in giving to the defendants in error under the issues, the opening and closing of the case on the trial.

This case has been twice tried before the court of common pleas, with the same ruling of the trial court as to the competency of this evidence; and even if it were doubtfully competent, we believe it better that this should be determined finally by the Supreme Court before further expense is made in the trial of the case.

It would seem that the whole merits of the case turn upon the proposition made, and the rights of the parties will be finally determined when the Supreme Court has settled the competency of this testimony.

The judgment of the court of common pleas is affirmed.


text:
    AUTHORITY OF APPELLATE COURT TO MODIFY A JUDGMENT IN THE INTEREST OF JUSTICE.
    Court of Appeals for Hamilton County.
    Simon Hubig v. Kiewitt & Frederick.
    Decided, March 29, 1915.

      Court of Appeals — May Modify a Judgment in the Interest of Justice— Section 11364-

    Where justice can best be served by modifying or correcting a judgment which has been taken to an appellate court, this will. be done and the judgment as so modified will be affirmed.

      W. A. Einckhoff and Philip & S. G. Boettinger, for plaintiff in error.

      G. B. Matthews, George B. Goodhart and Harry T. Klein, contra.
   Kinkade, J.

The defendants in error brought an action in the court of common pleas against the plaintiff in error to recover the contract price for the sale of a one-third interest in a mercantile business; also to recover damages arising, as they claimed, by reason of a loss to them sustained by the operation of the business while awaiting the incorporating of a company to take over the mercantile business with respect to which the contract of sale arose, and also to recover damages by reason of the inability of the defendants in error to secure one-third of the capital stock of the corporation so to be formed, which corporation, it was alleged, had never been formed because of the opposition thereto by the plaintiff in error here.

The plaintiff in error admitted the making of an oral contract between himself and the defendants in error, covering the purchase of a one-third interest in the mercantile business referred to, but averred that the contract was different in terms from that set forth in the petition. He further averred that after the contract had been entered into in the form as.he claimed, that the parties had entered into another agreement, which, in effect, modified the first agreement and which contemplated a transfer of the mercantile business that was the subject-matter of the contract to still another corporation to be formed by the consolidation of certain existing companies; that he had performed all of his obligations under the modified contract, but that the defendants in error had defaulted thereon and, by reason of their default, he had been unable to secure $5,000 of the capital stock of the last named consolidated company which was to come to him under the modified agreement, and on this account he had sustained a loss of $7,500, his claim being that this would have been the market value of the fifty shares of the capital stock of the consolidated company which the parties had contracted he should have.

The answer denied all of the allegations of the petition as made, and presented the claim, as I have stated, in the way of a cross-petitioii on which the plaintiff in error prayed for judgment for $7,500. By reply the allegations of the answer and the cross-petition Avere denied.

The case was tried to a jury and resulted in a verdict of one cent in favor of the defendants in error. This verdict was set aside by the trial court and a new trial granted. Upon the second trial the jury returned a verdict in favor of the defendants in error and against the plaintiff in error for $2,375.96, upon which judgment was entered. Thus in a proceeding to reverse the judgment entered upon this last verdict, numerous alleged errors are called to our attention.

An examination of the record discloses more uncertainty and confusion Avith respect to amounts and the terms of the contracts between the parties than AAre-have ever seen in any case that has been in this court. It would be impossible to put into any record evidence more contradictory than is in this record, and Ave think it Avould be difficult, even if one Avere to set about it purposely so to do, to state numerous amounts in a more confusing and conflicting form than is manifest in the record in this case. The figures repeatedly given by the various AAÚtnesses are representing the items of assets and liabilities are seldom twice mentioned as the same amounts. Each side undertook to establish the terms of the contract, but we .think the evidence on each side left the case in great doubt and uncertainty and in a form most difficult for consideration by any ordinary jury. Every member of this court has served as a common pleas judge and none of us recall ever having any case tried before us that was more difficult to state clearly and sufficiently to a jury than this, taking into account the various negotiations of the parties and their conduct with, respect to the subject-matter of the suit before they finally disagreed and found it necessary to go into court to adjust their rights.

It is not difficult to sustain some of the claims of error urged upon our consideration by counsel for the plaintiff, but to do this by no means furnishes a satisfactory basis upon which to decide the case. The action has been twice tried with the results as stated. Several years have elapsed since the transactions took place. It is important to all that the litigation be closed without further delay, if this can be accomplished without doing injustice to any of the parties. The power of this court, and its duty as well, under circumstances such as attend this case, are clearly indicated in Section 11364, General Code. While unnecessary to supplement this direct enactment of the Legislature on the subject, we nevertheless call attention to the following general statement of the law found in 11 Enc. Plead. & Prac., 1068, which reads as follows:

“An appellate court, is vested with the amplest power to suit its judgment to the exigencies of each case that comes before it, or to make its judgment effectively yield justice to the parties whose interests are involved. Accordingly, an appellate court may modify or correct a judgment brought before it. ’ ’

We have read all the evidence with great care, have examined the briefs of counsel on both sides, and have devoted to the case an unusual amount of time in its consideration. It is not practicable, within the reasonable limits of an opinion, to set forth our views in detail with respect to the various features of the case and, therefore, we have determined to state only our conclusion, It is, that, under the evidence manifest in the record, substantial justice will be accomplished by modifying the judgment of the court of common pleas by reducing the amount thereof to $1,000 as of the date of the., judgment there rendered, and the judgment, as thus modified, will be affirmed.

Richards, J., and Chittenden, J., concur.


author: Sayre, J.

text:
    WAIVER OF BUILDING CONTRACT GUARANTY.
    Court of Appeals for Hamilton County.
    Love, Piket & Nulsen Co. v. Estella Jerome.
    Decided, March 9, 1916.

      Building Contracts — Insistence on Compliance with Specifications— Amounts to a Waiver of Guaranty, When.

    Where a building contractor proposes to-comply with his guaranty, but in order to do so must disregard an impossible provision of the specifications, the owner by insisting on compliance with the specifications waives the guaranty.

      Littleford, James, Ballard & Frost, for plaintiff in error.

      Carl Lehmann and Pogue, Hojfheimer & Pogue, contra.
   Sayre, J.

Plaintiff in error, after the contract had been made and entered into and the work commenced, discovered that the rooms could not be heated to the required temperature if the plans and specifications were complied with. So it undertook to install a heating system not in accordance with the plans and specifications. Upon discovery of this change the owner demanded to know the reason therefor, and was informed of all the facts and that the change would not be any more expensive to her. She thereupon directed the contractor to furnish -the heating system called for, according to the plans and specifications, which was done.

We have no quarrel with the principle announced in Cameron-Hawn Realty Co. v. Albany, 207 N. Y., 377; Lake View City v. MacRitchie, 134 Ill., 203.

The plaintiff in error having agreed to heat the rooms to a temperature of seventy degrees F. IT. during the coldest winter weather with water not over one hundred and eighty degrees was bound to do so under the contract.

If the heating apparatus had been installed, without question between the owner and contractor, in strict compliance with the specifications and it would not ha,ve heated the rooms as required, then the case would have been clearly controlled by the rule announced in the two cases above referred to. But beyond question there is in the case under consideration a different state of facts from those reported in those cases. In our -case the contractor undertook to furnish the equipment which would have supplied the required temperature. It undertook to comply with its guaranty, notwithstanding the specifications. This important fact is not found in the cases referred to.

The plaintiff in error had undertaken to comply with the specifications and to furnish the required temperature — an impossible task. It could not do both. It must do one or the other. It chose to do the essential thing, to-wit: to install a heating system which would furnish the required temperature. Here the owner interfered. The same question was then before her. She could not require of the contractor an impossible thing. She must elect to require either a strict compliance with the specifications and take the chances of the heating equipment, constructed according to the specifications, being able to furnish the required temperature or to require that the heating system be installed so as to furnish the required temperature, the plans and specifications to the contrary notwithstanding. She chose the former. By such choice she waived the latter.

It has been said that the contractor, when it discovered that the contract could not be complied with, should have refused to go on with it, or have secured a modification of it. But the contractor was bound to go on with the contract and had no right to refuse to go on with it, and the only modification which it could have secured was with the consent of the owner and she ordered a compliance with the specifications, which was a refusal to modify the contract.

The judgment of the court of common pleas will be reversed, and this cause remanded to that court for a new trial.


text:
    CONSTRUCTION OF A BUILDING CONTRACT.
    Circuit Court for Sandusky County.
    The Bellevue Farmers Grain Company v. Simon Fronizer, Lester W. Dean and William F. Schmidt.

    Decided, April 19, 1912.

      Building Contracts — Proof as to Any Waiver of Provisions of the Writ~ ten Contract Must be Clear and Positive — Nature of the Warranty ■ Given by the Contractors Construed — Damages for Failure to Complete the Work Within the Appointed Time — Charge of Court.

    1. In an action for recovery of the balance of the contract price for construction of a grain elevator, under a contract which provided that no claims should he made for extra work unless such work was done in .pursuance of a written order from the party for whom the work was being performed, a claim for extras having been asserted, based on a request for such extras and their being furnished under circumstances which evidenced an expectation of payment, it is error to refuse a special charge, requested before argument, to the effect that waiver of the condition of the contract as to extras can only be shown by evidence so clear and convincing as to leave no reasonable doubt with reference thereto.
    2. The provision in said contract to the effect that the contractors should indemnify and same harmless those for whom the elevator was being constructed from any injury or damage by reason of failure of the elevator or its equipment to be servicable for the purpose intended, constituted an express warranty, and when read in connection with other provisions of the contract is not open to the construction that, if the material used • and work done were in accordance with the plans and specifications agreed upon before the work was undertaken, the contractors would be relieved from responsibility for any failure of the elevator to serve the purpose Intended.
    3. It is erroneous, in such a case, to direct the jury to allow no damages for failure to complete the structure within the time specified, if the defendants by acts, conduct or statements extended the . time, without regard to the extent to which plaintiffs were delayed in their work by such acts, conduct or statements.

      Allen Aigler and Jesse Viclcery,-iov plaintiff.

      Kinney, O’Farrell & Rimels.pach and Parkhurst & Yiehery, contra.
    Wilkman, J.
    Error to the Court of Common Pleas of Sandusky County.

       Affirmed by the Supreme Court without opinion, Fronizer v. Bellevue Farmers’ Grain Co., 90 Ohio State, 446.

   The defendants in error sued in the court of common pleas as the surviving members of a partnership which formerly included said defendants in error and one M. W. Hunt, now deceased. They asked judgment against the plaintiff in error for the balance of a contract price for the construction of a grain elevator, and for certain extras for work and materials rendered and furnished by them in connection with said structure. The elevator was constructed under a written contract and a. supplement thereto,.the original bearing date of June 1st and the supplement June 23d, 1909. The defendant, which was an incorporated association of farmers, filed an answer and cross-petition asserting various matters of defense and counter-claim, and asking affirmative relief in the way of damages.

The essential points of the controversy between the parties may be succinctly stated as follows:

The plaintiffs assert full performance of the contract on their part, and allege $2,994.79 as a balance on the contract price and for said extras. The defendant denies the performance of the contract, alleges numerous defects of construction, and asserts by way of defense as against the claim for extras that no order for said extras in writing was ever made by the defendant, as required by the written contract in the following terms:

“All necessary expenses are provided for by the amount contracted hereby to be paid said party of the first part, so that said amount will cover the entire cost to said party of the second part. No claims for extra work shall be made unless the same be done in pursuance of a written order from said party of the second part and given to said party of the first part prior to the doing of said extra work, or the furnishing of.extra materials.”

The principal claims asserted by the defendant by way of counter-claim are upon an alleged warranty, embodied in the written contract, and a stipulation that the entire work of construction should be performed between the date of the contract and August 31, 1909. As stated in the plaintiff’s petition, the building was not in fact completed and ready for operation before December 6th of that year. The contract contained a provision that for any delay not due to certain specific causes beyond the control of the contractors, after the stipulated date of completion, the defendant company should be entitled to $10 for each day during such delay as liquidated damages. The total amount of damages claimed by the defendant was $4,890, for which the defendant asked judgment.

The ease was tried to a jury and resulted in a verdict for the plaintiff below in the sum of $2,725.95. The record brought up to us is a very long one, embodying about 1,000 pages of evidence in the bill of exceptions, and numerous claims of error are made. It is claimed that the verdict is not sustained by this evidence, but our attention has been called to the fact that although the certificate of the trial judge asserts that the bill contains all the evidence, it lacks a written exhibit which appears to have been offered and received, and for that reason we are not attempting to pass upon the weight of the evidence. It does not appear that this exhibit is not material to such inquiry.

Among the numerous claims of error are a few which seem to demand especial attention by reason of their importance, and the fact that especial emphasis has been placed upon them in argument. I have already referred to the requirement of- the contract as to written orders for extras. The plaintiff contends that although no written orders were given, these extras were requested by the defendant and furnished under such circumstances as to evidence an expectation of payment. In view of the evidence bearing upon this point, at'its close and before argument, the defendant among other requested instructions asked the court to give to the jury instruction No. 10, which I read:

“Ton are instructed that in order for the plaintiff to recover for any extras save and excepting those expressly admitted by the defendant in open court, the plaintiffs must show that the condition in the contract providing that ‘No claims for extra work shall be made unless the same be done in pursuance of a written order from said party of the second part and given to said party of the first part prior to the doing of said extra work, or the furnishing of extra materials,’ has been waived by the 'defendant and the plaintiffs must prove the waiver of the condition by such clear and convincing evidence as to leave no reasonable doubt about the waiver.”

This instruction the court refused to give. It is our view that the defendant was clearly entitled to this instruction before argument, ‘ and that it should have been given, pursuant to Ashley v. Henahan, 56 Ohio St., 560, paragraph 5 of the syllabus. The refusal of the court to give it was reversible error, and was not cured by the giving of* a portion of it, in substance, in the general charge. That the action of the court may have resulted in prejudice is indicated by an express special finding of the jury that a part of their verdict to the amount of $316.91 Was for extras in excess of such as were admitted by the defendant.

The written contract sued upon contained the following language :

‘‘Said party of the first part shall indemnify and save harmless said party of the second part from all injury and damage by reason of any failure of said steel elevator or equipment thereof to be serviceable for the purposes intended, to-wit, the economical receiving, handling and shipping of grain.”

This paragraph, with certain other expressions in the contract, and an indemnity bond executed in connection with it, constituted, under our construction, an express warranty, and as such was not affected by the fact that the work was to be done and materials were to be furnished by the contractors pursuant to certain plans and specifications agreed upon by the parties. The defendant contends that it is an association of farmers, unskilled in the construction of such an elevator, and that they made the contract in reliance upon assurances of the 'contractors that the structure, when completed pursuant to said .plans and specifications, would be serviceable to the extent and in the way expressed in the contract. Incidental to this matter are certain claimed errors in the refusal of the court to permit oral evidence of conferences before and after the execution of the contract, between a director of the defendant company and some representative of the plaintiffs. We incline to the view that the holding of the court in excluding' this evidence was correct, for the reason that the contract spoke for itself, and it needed no reinforcement of this character. The parties were presumed to enter into the contract in reliance upon its terms. The court, however, throughout the ease seems to have adopted the contention of plaintiff’s counsel, holding that if the plaintiffs constructed the building pursuant to the plans and specifications and the other express terms of the contract, it was of no consequence whether the elevator proved serviceable for the purposes intended and expressed. This is especially illustrated in the giving of plaintiff’s requested instruction No. 8, and in various expressions in the general charge. Without quoting this instruction, or these expressions, it is sufficient to say that we think that the court fell into an error in this regard. Before entirely leaving this subject I should mention that the written contract between the parties contained a provision as follows:

“The whole of the work provided for in these specifications must be done to the full satisfaction of, and final acceptance by said party of the second part.”

It is essential that this stipulation should not be overlooked in any consideration of the questions involving a performance on the one side and acceptance on the other. Little, if any, force seems to have been given to this important and not unfamiliar clause in building contracts in the court’s definition of the rights and obligations of the parties. Indeed, as shown on page 1008 of the bill of exceptions, the judge said to the jury that even if it is a fact that the company never did accept the elevator, that fact—

“will not defeat the right of the plaintiffs to, recover, if you further find that the plaintiff’s firm completed said work, in substantial compliance with the contract in question in this case; if it did, it is entitled to recover the contract price. ’ ’ '

In other parts of the charge this stipulation in the contract seems to have been overlooked. Before argument, an instruction, No. 5, asked by the defendant, which bears on this matter, was refused. This instruction reads as follows:

‘ ‘ The contract between the parties to this action provides that ‘the whole of the work provided for in these specifications must be done to the full satisfaction of, and final acceptance by said party of the second part,’ and before the plaintiffs can recover in this action they must show that they have completed the construction of this elevator and the equipment substantially in accordance with the plans and specifications, unless they show that said building was accepted by said defendant.”

We think that it embodied in substance, a correct proposition and should have been given.

Among the instructions asked by the plaintiff and given before argument is No. 5, as follows:

‘ ‘ I say to you as a matter of law, that the defendant had the right to extend the time for the performance of the contract, and waive the requirements therein as to time, and that the same need not have been in writing;'and should you find from the evidence that the defendant did extend the time for the performance of said contract, either by acts, conduct or direct statement, made to the plaintiffs, or by the ordering and directing of extra work to be done by the plaintiffs or their sub-contractor, not provided for in the contract, then defendant can not recover anything by way of damages for a failure to have said contract completed within the time specified in said contract.”

This instruction was clearly erroneous, as directing the jury to allow no damages for failure to build the structure within the time specified in the contract, if the defendant by acts, conduct or statement extended the time at all, without regard to the extent to which the plaintiffs were delayed in their work by such acts, conduct or statements.

Instruction No. 3 asked by the defendant was one to which we think the defendant was entitled, and that the court erred in refusing it. The same is true as to instruction No. 7, which called attention to the express warranty in the written contract.

We might dwell further upon the general charge of the court, which in some respects seems to us to be possibly misleading, but the errors to which attention has been expressly called seem to us so vital as to require a reversal of the judgment of the trial court; and we are not disposed to enter into unnecessary criticism of a charge, most of the features of which are entirely in accordance with the law. I will say here that the case was sufficiently complicated and the questions sufficiently difficult to make the framing of the instructions equally so.

Upon another trial the corrections of any errors of minor character, and dependent, to some extent, upon those to which attention has been called, will readily be made without special mention of them in this opinion. We might suggest the query whether before the re-trial there should not be some remodelling of the pleadings to avoid further possible error, in view of the fact that there is no express averment in the petition or reply of waivers of the requirements of the contract as to extras and delay in construction. The petition alleges performance of the contract — not waiver or modification of its obligations; and it fails to allege any express contract for extras, or promise of payment therefor.

The judgment of the court of common pleas will be reversed and the cause remanded for a new trial, and further proceedings according to law.

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


text:
    AS TO LIABILITY OF PLEDGEE FOR SELLING ARTICLE FOR LESS THAN ITS VALUE.
    Circuit Court of Cuyahoga County.
    The Merchants’ Banking & Storage Company v. Sarah M. Ryder.
    Decided, December 22, 1900.

      Pledges — Duty of Pledgee to Obtain Highest Price of Pledged Articles at Private Sale.

    1. Where the pledgee of personal property sells the pledged articles at private sale, he acts as agent of the pledgor in making the sale, and it is his duty to exhibit the articles in such a manner as to attract buyers and use all other reasonable methods of obtaining as nearly as possible what the articles are reasonably worth.
    2. Where the pledgee of personal property sells it at private sale for a sum much less than the actual value of the property, the discrepancy in price may be so great as to establish want of care and neglect o£ duty on his part and make him liable in damages for the difference between the selling price and the actual value.

      M. TJ. Solloway, for plaintiff in error.

      Foster & Foster, contra.
    Caldwell, J.; Marvin, J., and Hale, J., concur.
    The case of the Merchants’ Banking & Storage Company against Sarah M. Ryder comes into this court on error from the court of common pleas.
   The defendant in error, Sarah M. Ryder, pawned some diamond ear-rings with the plaintiff in error, the Merchants’ Banking & Storage Company, and obtained upon them $147, for which she gave a note of $150.

A card was given her at the time, which she accepted and retained, and on which she waived notice of the sale and waived publication of sale, and authorized a private sale. The obligation became due and ivas not paid; the interest was not kept up; and, after the statutory period, a private sale was made. The diamonds were sold for $195, and the pledgor brought this action to obtain the full value of the diamonds, less what she owed the bank.

Many exceptions were taken to the evidence upon the trial of the case, and exceptions were taken because the court refused to charge as requested by the storage company. These exceptions to the evidence, and the exceptions to the court’s refusal to charge, were largely due to the fact that the case was tried on a different theory from that presented by the petition; that is, the attorney for the storage company took it that this was for a conversion of the property and as though Mrs. Ryder was trying to reclaim the property; but that was not the action.

It was recognized as a fact all the way through, that the storage company had proceeded as it was authorized to do, in proceeding without notice to her to sell, and proceeding to sell at private sale.

The only question involved in the case was, whether the storage company, because of the manner of conducting the sale, was so negligent and careless in the sale of this property, that it obtained much less than its real value, and that the evidence of ihat discrepancy would, in and of itself, show carelessness and negligence.

The title to pledged property remains in the pledgor; the pledgee gets a lien upon the property. When the pledgee makes a conversion of the property, if that is unlawful the pledgor may treat it as no disposition of the property and may proceed against the pledgee. That is one remedy that the pledgor may have; or the pledgor may proceed simply for damages for non-performance of the duty owed to the pledgor by the pledgee.

Complaint is made in this ease that the pledgee of the property made no reasonable effort to obtain purchasers for this property when it was for sale; that it was kept in a desk, in a box, and was exhibited to no one who was there for the purpose of making purchases except those who might inquire for property of that kind.

The authorities show clearly .that the pledgee can not excuse himself in making a sale of this character unless he uses that diligence that persons who generally sell that class of property use. If it becomes necessary to advertise to call the attention of persons who purchase that class of property, notifying them that the property is for sale — all these things are what merchants do; and merchants always expose that class of property in showcases; they do not hide it away as a rule; at least, they keep some part of it where it can be seen, and where persons looking for purchases of that sort, may see it. None of these things were done on the part of the company.

Noav, in the sale of pledged property, the pledgor still remains the owner, and the plédgee becomes an agent to sell, and the authorities state his duty pretty clearly in saying that his duty is that of a prudent executor in making a disposition of the property in his hands as trustee. The duty of the agent is measured by many authorities by that rule, and, if he falls short of that, he has not met his obligation to the bailor.

The evidence in this case shoAvs that this property was sold for $190; and while experts as to the value of diamonds, some called by one side and some by the other, testified in this case, there was no expert called AArho did not place the value of this property at considerably more than was obtained for it; even the very lowest by either side places it considerably higher.

The only question in the case is, whether it Avas sold so much beloAv the market value of the property that it would warrant the court in saying that there was negligence on the part of the agent or pledgee. That is really the only question there is in the case. Some authorities have said that that discrepancy must be so great as to show an intentional injury. That was, many years ago, the rule of some of the courts. I do not find that it is the rule of the present day at all. But, as I have said, it is put on the ground of agency; and, if the testimony sIioaa^s that the agent was careless and negligent in obtaining what he might have had for the property, that is, what the market would have warranted for such property, then he is liable for such carelessness and negligence.

We have figured this matter OArer, taking the figures of the experts, and have examined it carefully, and we can not say that the jury were far out of the Avay*; the evidence would warrant them in giving the verdict they did, and Ave see no other way, under the rule in such matters, than to affirm this judgment.


author: Crow, J.

text:
    NO APPEAL FROM AN AWARD BY THE INDUSTRIAL COMMISSION.
    Court of Appeals for Allen County.
    State Liability Board of Awards et al v. Newton Snyder.

    Decided, November 4, 1915.

      Workmen’s Compensation Law — Act of May 31, 1911 (102 O. L., 524)— Rights of Appeal — Section 36 Construed.

    Under the act of May 31, 1911 (102 O. L., 524), when an award has been made upon the application of an injured employee, appeal does not lie from the board’s action in the matter of determining the amount or amounts of such award.

      Eng ene Carlin and J. J. Weadoch, for plaintiffs in error.

      T. II. Hamilton, contra.

       Affirmed with opinion, State Liability Board of Awards v. Snyder, 94 Ohio State.

   Crow, J.

Defendant in error, who was plaintiff below, was injured in the course of his employment while in the service of the Lima Locomotive Corporation, which had complied with the laws of this state relative to workmen’s compensation insurance.

The accident occurred January 18, 1913. Subsequently he made application to the State Liability Board of Awards, which took cognizance of the same, and on May 14, 1914, by warrant on the state treasurer, disbursed the sum of $181.71 to the claimant. On the same date, by a like warrant, the amount of $18 was paid to the attending physician, whose verified report was filed by plaintiff in support of his said application. On May 26, 1914, by a warrant similar to the above, the sum of $19 was paid to ‘claimant. This warrant appears to have been issued to cover hospital charges incident to plaintiff’s injuries. No further payment was made to plaintiff below nor on account of the accident to him.

On September 25, 1913, the claimant caused a notice of appeal to be served on the prosecuting attorney of Allen county, Ohio (the county wherein his injuries were incurred), from the action of the board, and on October 21, 1913, filed his petition in the court of common pleas of said county, against said board and the industrial commission of Ohio.

In said 'notice of appeal and petition, the claimant set forth the nature of his employment, the compliance by said employer with the provisions of the workmen’s'compensation law of Ohio, the date he sustained said injuries, the nature of the latter, the circumstances attending the accident to him, the fact that he had made application to. the defendant State Liability Board of Awards, the cognizance of said application by said board, the election of plaintiff to accept under the provisions of said laws, the incapacity of plaintiff from following his usual vocation, and that in the month of August, 1913, said board absolutely rejected his claim without right or authority and refused to make payments in compliance with the laws above referred to.

' The case was submitted to a jujry, who returned a verdict in favor of plaintiff below. Judgment was rendered on the verdict, and by this proceeding in error it is sought to reverse said judgment.

The bill of exceptions does not contain the record of proceedings of the board in the matter of plaintiff’s claim. •

It does appear, however, from a letter dated June 21, 1913, in answer to one from claimant, dated the 19th of that month, that the chief clerk of the board informed claimant that his claim would come up for further consideration by the board within the next few days and that he would be promptly advised as to the further disposition of it. The contents of said letter from the claimant are not disclosed.

And it further appears, by a letter dated August 26, 1913, from the chief medical examiner of the State Liability Board of Awards, to the attorney for the claimant, in answer to a letter from the latter that on August 11, 1913, “The board acted on the case, August 11, and considered that no further compensation was due,” and that “the case was closed.”

Between August 26, 1913, and the commencement of plaintiff’s said action he made no further application to the board.

As already stated, the record under review does not show the proceedings of the board, excepting as they may be gathered from the evidence of the plaintiff, the warrants (which wer* paid to the payees), the letters above referred to, and the evidence of the chief medical examiner.

While the date does not appear with entire clearness, the fact is that subsequently to the receipt of the warrant by plaintiff for the $181.71, the chief medical examiner made a personal examination of the claimant at his home in Lima, Ohio. He testified that he was not requested to make the examination but did. so of his own volition under a rule of the board requiring such action in ‘ ‘ difficult cases. ’ ’ His evidence further shows that the payments by the two warrants above mentioned, to the claimant, were based upon plaintiff’s application, the verified report of his attending physician, and the report of the board’s local physician. And from the testimony of the witness it appears that upon his report, the board, on August 11, 1913, took the action set forth in his letter of August 26, 1913.

The controlling question in the case depends on the construction of Section 36 of the act found at page 524 of Volume 102 Ohio Laws, now Section 1465-75, General Code, and related sections.

Plaintiff in error contends that because the claimant participated in the insurance fund, the court below was without jurisdiction to entertain plaintiff’s appeal and petition.

Defendent in error insists that there was no "final action” on the claim until the step taken on August 11, 1913, which was the denial of the right of the claimant to further participate.

Viewing the language of Section 36 alone, the position of defendant in error does not seem to be without foundation. The pertinent provisions of that section are as follows:

"The board shall have full power and authority to hear and determine all questions within its jurisdiction, and its decision thereon shall be final.
"Provided, however, in ease the final action of such board denies the right of the claimant to participate at all in such fund on the ground that the injury was self-inflicted or on the ground tbat the accident did not arise in the course of employment, or upon any other ground going to the basis of the claimant’s right.” * * *

But in the interpretation of the meaning of the words “final action,” resort must be had to the context of the law, the dominant purposes of which are to lodge in the board the power of accumulation of the fund, and its distribution (within the limits prescribed) among those for whose benefit it is created.

Within the scope of these purposes it is the obvious intent of the legislation to make the board supreme, but there is no such manifest purpose, so far as concerns the determination of the status of eligibility of one who seeks to become a beneficiary.

The act would be lacking in vitality if the arbitrary power were sought to be conferred upon the board, of determining who might or might not be proper recipients of the relief provided by the legislation. A provision must of necessity have been made whereunder a person amenable (as plaintiff below was) to the law, should have “his day in court,” on the question of his right to participate in a fund to which alone he would be compelled to look for redress.

Section 33 of the act, now Section 1465-72, General Code, declares the power and jurisdiction of the board over each case to be continuing, and that it may from time to time make such modification of, or change in, its former findings or orders with respect thereto, as, in its opinion, may be justified.

In the light of this section and of the general language of the remainder of the act, what can properly be said to have been in legislative contemplation, by the employment of the words “final action” in Section 36, in its relation to the subject of the section, namely, the right of participation at all in the fund ?

The construction urged by defendant in error would confine the term “final action” to the latest step taken by the board, rather than to the jurisdictional determination by it.

Section 1465-75, by its own unambiguous language, declares in the board full power and authority to hear and determine all questions within its jurisdiction, and makes its decision final thereon.

Of course, the jurisdiction of the board in any case depends on the eligibility of the claimant to participate to any extent in the fund.

In view of the purpose sought to be accomplished by the act, the means and methods of such accomplishment, and of the language of all the remainder of the act, the conclusion seems inevitable that the words “final action” relate solely to the matter of determination of the right to share in the accumulation resulting from the collective premiums.

From the denial of such right, the claimant may appeal, and upon proceedings thereunder, that question shall be adjudicated by the law of the land, and all other matters, properly in controversy, be therein disposed of.

Consequently, when a claimant invokes the provisions of the legislation, and after determination in his favor fixing his status of eligibility to participate, the amount of allowance made by the board can not be reviewed by way of appeal to the courts.

The power and jurisdiction of the industrial commission still exist over the subject of claimant’s injuries, but the question of the extent of the relief awarded by it or its predecessor has not, by any provision of existing statutes, been made reviewable by judicial proceeding.

Kinder, J., concurs; Ansberry, J., not sitting.


author: Gorman, J.

text:
    SERVICE UPON THE STATE IN PROSECUTIONS FOR MISDEMEANORS.
    Court of Appeals for Hamilton County.
    Samuel Stryk v. State of Ohio.
    Decided, February 20, 1915.

      Criminal Law — Proceedings in Error in Misdemeanor Cases — Service on the Attorney for the Prosecuting Witness Insufficient to Bring the State Into Court.

    In the prosecution of error proceedings in an action by a wife against her husband for failure to provide for their minor child, service of summons in error upon the attorney representing the wife or waiver of service by him does not give the reviewing court jurisdiction, and the state can be brought into court only by service on or waiver of service by the prosecuting attorney or some one duly authorized by him to act in that behalf.

      Harry Hess, for plaintiff in error.

      Jos. L. Meyer, contra.
   Gorman, J.

This is a proceeding in error to reverse the judgment of the court of common pleas, which affirmed a judgment of the municipal court of Cincinnati in the above entitled cause.

Prosecution was commenced in the municipal court of Cincinnati against the plaintiff in error Samuel Stryk by his wife-charging him with failure to provide under the statute. The affidavit charging the plaintiff in error with the violation of the statute was filed in the municipal court on the 3d of August, 1914, and therein it charged the said Stryk with the violation o'f Section 12970, General Code, which in substance provides that whoever having the control of or being the parent or guardian of a child under the age of sixteen years abandons such child * * * or negligently fails to furnish it necessary and proper clothing and shelter, shall be fined not less than ten dollars or more than two hundred dollars or imprisoned not more than six months, or both. Therefore it will be seen that the offense charged was misdemeanor.

Upon the trial in the municipal court the plaintiff' in error, Stryk, was found guilty and ordered to pay to the Ohio Humane Society the sum of eight dollars per week for the proper support of his minor child, Ester Stryk. Motion for a new trial was made, and overruled, and a bill of exceptions was prepared, filed and signed in due form by Judge Bell of the municipal court. A petition in error was thereupon prepared by counsel for plaintiff in error, the caption of which was “The Court of Appeals, Hamilton County. Samuel Stryk, Plaintiff in Error, versus State of Ohio, Defendant in Error.” The petition in error was signed by Mr. Hess, counsel for plaintiff in error, and duly verified by plaintiff in error, Samuel Stryk.

It appears that before the petition in error was filed with the clerk of the court of appeals a waiver was signed, upon the back of the petition, as follows: “The defendant in error by the prosecuting attorney, Joseph L. Meyer, hereby waives the issue and service of summons in error in the above entitled action, and enters appearance therein. State of Ohio, by Joseph L. Meyer, Attorney. ’ ’ "When the petition in error was brought to the court house by counsel for plaintiff in error, he learned that erron would not lie from the municipal court to the court of appeals, and he thereupon changed the caption of his petition in error by striking out “Court of Appeals” and substituting therefor “Common Pleas Court of Hamilton County, Ohio” and filed the petition in error together with the transcript of the docket and journal entries and original papers of the municipal court, with the clerk of the court of common pleas, leave having been given to file petition in error by one of the judges of the court of common pleas. There was also filed with the papers an acknowledgment by Joseph L. Meyer as attorney for the state of Ohio, of the notice of the filing of a petition in error, but this notice was also captioned “Court of Appeals” and before filing it with the clerk was changed to ‘ ‘ Common Pleas Court of Hamilton County” and the record discloses that Mr. Meyer was not apprised of the change in the caption of the petition in error or the acknowledgment of the notice of filing petition in error.

The case came on to be heard in the court of common pleas, and various motions were made to dismiss the error proceeding on the ground that the state of Ohio, the defendant in error, was not properly in court, not served with summons in error or a waiver. The court of common pleas overruled all the preliminary motions, and upon hearing affirmed the judgment of the municipal court, and error is now prosecuted from the court of common pleas to this court seeking to reverse that judgment.

In this court there was filed with the petition in error a transcript of the docket and journal entries of the common pleas court, together with all the original papers and transcript of the docket and journal entries and the bill of exceptions from the municipal court.

Upon the filing of the petition in error in this court on December 23, summons in error was issued directed to the sheriff of Hamilton county, commanding him to notify the state of Ohio that the plaintiff in error had filed a petition in error in this court. This summons in error was served upon Joseph L. Meyer as attorney for the state of Ohio. When the case was argued in this court by counsel for plaintiff in error and Joseph L. Meyer, suggestion was made to the court that there was no jurisdiction to hear and determine this case because the state of Ohio had not been served with summons in error, nor was there a waiver of service on the part of the state of Ohio.

The Legislature, in February, 1914 (104 0. L.,'187), among other things amended the act creating the municipal court of the city of Cincinnati so as to confer jurisdiction on the common pleas court to hear and determine proceedings in error prosecuted from the municipal court, whereas theretofore the original act provided for the prosecution of error to the Court of Appeals of Hamilton County. The act creating the municpal court of the city of Cincinnati together with the amendments thereto, provides the method of prosecuting error. Section 26 (104 0. L., 187) among other things provides that proceedings in error may be taken to the Court of Common Pleas of-Hamilton County from a final judgment or order of the municipal court of Cincinnati in the same manner and under the same conditions as provided by law for proceedings in error from the court of common pleas to the Court of Appeals of Hamilton County. * * * The review of all cases other than civil actions and proceedings shall be had in the manner provided for review of actions and proceedings in which a judgment for more than three hundred dollars has been granted.” By the provisions of the sixth section of the original act creating said court (103 0. L., 280), a municipal court is given jurisdiction in criminal matters and prosecution for misdemeanors or violation of ordinances as heretofore had by the police court of Cincinnati. By Section 8 of the act, page 281 of 103 Ohio Laws, it is provided that municipal court shall have jurisdiction of all misdemeanors and of all violations of city ordinances of which police courts in municipalities now have or may hereafter be given jurisdiction. And again, by the provisions of Section 13 of said act, page 283, it is provided that in all criminal cases and proceedings the practice and procedure and mode of bringing and conducting prosecutions for offenses, and the powers of the court in relation thereto, shall be the same as those which are now, or may hereafter be, possessed by police courts in municipalities unless otherwise provided herein.

It is therefore clear that the municipal court of Cincinnati had jurisdiction of this prosecution and that the methods of procedure should have been the same therein as theretofore had in the police court of the city of Cincinnati.

By the provisions of Sections 4306 and 4307, General Code, the city solicitor shall be the prosecuting attorney of the police court, and shall prosecute all cases brought before that court, and as far as they are applicable thereto, perform the same duties as required by the prosecuting attorney of the county. He may designate one of his assistants to act as prosecuting attorney of the police court.

It would therefore appear that ample provision has been made for the prosecution of misdemeanors and crimes in the municipal court of the city of Cincinnati by virtue of the foregoing provisions referred to, which in substance provide that the procedure, methods and practice had in the police court shall be the same in the municipal court; and it was therefore the duty of the prosecuting attorney of the police court or the solicitor or assistant solicitor of the city of Cincinnati to attend to this prosecution. While there might be no objection to the attorney for the prosecuting witness appearing and assisting, nevertheless the law does not recognize such an attorney as representing the state. There was no power or authority in Joseph L. Meyer to appear on behalf of the state, or to represent the state of Ohio either in the municipal court or the court of common pleas, nor yet in this court, as will be seen by reference to the statute.

The court is therefore of the opinion that the state of Ohio was not before the court of common pleas in this proceeding in error because of the absence of the summons in error, and because of the failure of the prosecuting attorney either of the police court or of Hamilton county to waive the issuance and service of summons In error.

In any event, the waiver of Mr. Meyer of the issuance of the summons in error to the court of appeals would not be a waiver of the issuance of the service of summons in error without his consent in the. common pleas court, if the caption had been changed without his knowledge and consent, as appears to have been done. By the provisions of Section 13751, General Code, amended in 103 O. L., 434, in a criminal case, including a conviction for a violation of an ordinance of a municipal corporation, the judgment or final order of a court or officer inferior to the common pleas court may be reviewed in the common pleas court.

Section 13753, General Code, provides that a proceeding to review such a judgment shall be by petition in error, to which ■shall be attached such transcript and any original papers received by the clerk. This same method of proceedings in error is to be pursued when error is prosecuted in a criminal ease from the court of common pleas to the court of appeals.

Section 13754, General Code, provides that when such petition in error and precipe are filed in a criminal case (whether in the common pleas court or the court of appeals) a summons in error returnable in ten days shall be issued by the clerk thereof unless a judge thereof prescribe another day for such return. Such summons shall be directed to the sheriff of the county in which the judgment was rendered, and it shall contain such description of the judgment as to identify it, recite the fact that- a petition in error has been filed, command the sheriff to notify the prosecuting attorney of the time it will be for hearing,' and if original papers are required, command the sheriff to notify the officer in whose possession they are, to forward them to such clerk, etc.

Now in the case at bar there was no summons in error issued out of the common pleas court and no service made upon either the prosecuting attorney of the county, or, if we assume that the prosecuting attorney of the municipal court could exercise the functions of the prosecuting attorney of the county, no service was had upon him. The waiver of Joseph L. Meyer on behalf of the state of Ohio was entirely unauthorized and was not suffieent to bring the state of Ohio within the jurisdiction of the court of common pleas; so that in the opinion of the court, the common pleas court had no jurisdiction of the state of Ohio, and could not therefore proceed to hear and determine proceedings in error prosecuted from the municipal court of Cincinnati.

The same situation was presented to this court. While summons in error was issued out of this court on the petition in error, it did not require the sheriff to notify the prosecuting attorney of Hamilton county, as provided by Section 13754, General Code; and in the opinion of this court no other person was authorized to act on behalf of the state of Ohio. The prosecuting attorney might under certain circumstances designate somebody to act on behalf of the state. Nothing of that kind was done in this case, nor is it claimed that it was done. Joseph L. Meyer, so far as the record shows, acted merely as counsel for the prosecuting witness, Dora Stryk.

It was held by the Supreme Court in the case of Nichols v, State, 71 O. S., 335, that a prosecuting attorney may effectively waive the issuance and service of summons in error, and enter the appearance of the state by a proper endorsement for that purpose upon a petition in error filed for the reversal of a conviction for crime or-misdemeanor.

Inferentially, therefore, it must be presumed that no other person, in the absence of authority in the statute, had the power or the authority to waive the issuance and service of summons in error, nor could any other person be served with summons in error. The service of the summons in error issued out of this court upon Joseph L. Meyer had no more effect in bringing the state of Ohio into this court than if the summons in error had been served upon any other stranger to the record.

In civil actions it would be held necessary to issue summons in error in order to bring the proper party before the court, unless there was a waiver. R. R. Co. v. Anbach, 55 O. S., 553; Andress v. Greenfelter, 9 C.C.(N.S.), 446; Robinson v. Orr, 16 O. S., 281.

We hold that the same rule should apply in criminal eases. It would appear, therefore, that this court has no jurisdiction of the State of Ohio and can not proceed to hear and determine the questions of error raised, if any, which were committed either in the common pleas court or the municipal court of Cincinnati, and the only action that can be taken in this case at this time is to strike the petition in error from the files.

The court can not say whether or not there was error in the proceedings in the municipal court, but is strongly of the opinion that the court of common pleas acquired no jurisdiction in error for the same reason that this court has no jurisdiction at this time.

The judgment of the court is that the petition in error and the original papers and bill of exceptions shall be stricken from the files, and this the court does upon its own motion, for as we understand the law it is the duty of a court whenever it appears, ht any stage of the proceedings, that it has no jurisdiction either of the person or of the subject matter, to proceed no further with the hearing of the cause or proceeding, but to strike the pleadings and papers from the files, and this it may do sua sponte.

The entry should be made accordingly.

Jones (E. H.), P. J., and Jones (Oliver B.), J., concur.