author: Carpenter, J.

text:
    Tiedtke, Exr., et al., Appellees, v. Tiedtke et al., Appellants.
    (No. 4519
    Decided April 16, 1951.)

      Messrs. Marshall, Melhorn, Bloch & Belt, Messrs. Baker, Hostetler & Patterson, Mr. Dwight B. Buss and Mr. Harley A. Watkins, for appellees.

      Messrs. Ohlinger, Koles, Wolf & Flues and Mr. John 8. Brumback, for appellants.
   Carpenter, J.

This appeal on questions of law and fact brought to this court from the Probate Court an action for the construction of the last will and testament and its three codicils of Harry Tiedtke. It is the second action filed for that purpose. Harry Tiedtke died July -21,1924, leaving a daughter, Justina Margaret Tiedtke, then nineteen years old, his only child and heir. She married defendant John B. Mil-las in 1930, and they resided in California. In 1942, under the laws of that state, they adopted defendant Robert Millas, who was then three weeks old. Justina Margaret Tiedtke died intestate in 1946 leaving Robert as her only child, and her husband, John B. Millas. They will be referred to as the “Millas interests.”

Two. brothers and two sisters survived the testator. They have since died leaving five children, one grandchild, and the widow of one brother, who are defendants herein and will be referred to as the “Tiedtke interests. ’ ’

The problem-is: Which of these interests under the will and codicils now take the corpus and accumulated income of the trust, the income of which went to the testator’s daughter during her lifetime? The answer to this requires an involved but undisputed statement of facts.

The Tiedtke will was executed November 25, 1921. The first ten items provide for payment of debts and specific bequests. In item 11, testator bequeathed all the residue in trust for his daughter Justina. It empowered the trustees, his brothers, to handle the trust and to advance to the daughter such sums as in their judgment were necessary “for her support, comfort and happiness.” They were directed to transfer to her one-half of the property of the trust when she was thirty years old and the other half when she was forty; “to he hers absolutely.” Then the will provides :

“In case of the death of my said daughter, Justina Margaret Tiedtke, before coming into the possession of any part of said trust estate leaving no children, then such portion of said trust estate shall be divided among my heirs at law.”

January 10, 1924, by codicil, he provided in item 1:

“In the provision made in my said last will and testament for my daughter, Justina Tiedtke, it is'my desire that she be paid only, the net income each year, during her life, from the property given to her in said last will and testament, instead of it being given to her at the time stated in said last will and testament. ’ ’

Items 2 and 3 of this codicil, and a second codicil dated February 6, 1924, are unimportant in this connection. A third codicil, executed March 1, 1924, provides :

“I, Harry Tiedtke, desire that, before any distribution is made of my estate, it be arranged that my daughter, Justina Tiedtke, receive the income from one hundred and fifty thousand ($150,000) dollars during her lifetime.”

Apparently some complications arose in the administration of the estate and in 1928 the brothers, Charles and Ernest Tiedtke, as executors and trustees under the will, brought an action in the Court of Common Pleas under Section 10857, General Code, asking the direction of that court 'and its judgment in construing certain parts of the will and the three codicils. That section provided as follows: .

“An executor, administrator, guardian, or other trustee, may maintain an action in the Court of Common Pleas against the creditors, legatees, distributees, or other parties, asking the direction or judgment of the court in any matter respecting the trust, estate, or property to be administered, and the rights of the parties in interest, in the manner, and as fully, as formerly was entertained in courts of equity. ’ ’

Only a part of the petition in that action is in this record as an exhibit attached to this petition, but the whole journal entry of the judgment is in the record and is thereby brought to the attention of this court. It was entered July 10, 1929. After finding due process upon all defendants, the material part said:

“Upon consideration thereof, the court finds and adjudges the true intention of said will and the three codicils to be as follows, to wit: [then follows in Sections 1 and 2 detailed construction of the intention of the testator as to the administration of the trust for the daughter and the payment of legacies].

i ( # * #

“3. That it was further the intention of the testator that any residue of his estate, real or personal or mixed, remaining after the payment of debts, the establishment of the trust referred to in section 1 hereof, and the payment of said legacies, should be held in trust and disposed of in the manner stated in item 11 of the original will as amended by the first codicil thereto.

“That it was further the intention of the testator that in the event his said daughter, Justina Margaret Tiedtke died, leaving a child or children surviving her, both the principal and the income then constituting the trust property referred to in item 11 of the original will (as amended by the first codicil), should be paid to the said child or, in case more than one child survived her, then to said children, share and share alike; and in the event that his said daughter, Justina Margaret Tiedtke, died leaving no child or children surviving her, the principal and income then constituting the trust property referred to in item 11 of the original will (as amended by the first codicil) should be divided among the testator’s heirs at law, that is to say, the persons who would then be his heirs at law if he had not died until that date, namely, the date of the death of Justina Margaret Tiedtke, leaving no child or children surviving her.” 1

Paragraph 5 of that journal entry provided:

“5. All questions relative to the construction and meaning of said original will and codicils thereto, not herein answered and disposed of are reserved by the court for further consideration and determination, and for such purposes the court retains jurisdiction of this cause.”

In 1947, the Common Pleas Court “on motion of Ernest Tiedtke, as sole executor under the last will and testament of Harry Tiedtke, deceased, and for good cause shown” ordered the above-quoted paragraph 5 of the journal entry dated July 10, 1929, “vacated and set aside.”

On June 23, 1948, this action was commenced in the Probate Court by Ernest Tiedtke as executor and The Toledo Trust Company as trustee of the last will and testament of Harry Tiedtke, deceased.

It is not apparent why the plaintiffs herein did not proceed in the 1928 action in Common Pleas Court when it had retained jurisdiction for that purpose. Section 10504-66, General Code, continued the jurisdiction of that court in such matter and extended it to the Probate Court.

In their petition, they allege that in 1931, after payment of debts, taxes and expenses of the estate, the executors filed their final account; that there remained “value of less than $150,000, namely, $147,257.01,” which was turned over to The Toledo Trust Company as trustee under the Harry Tiedtke will; that the trust company has since administered that trust and, during the lifetime of Justina Tiedtke Millas paid to her the net income therefrom; and that there remained in its hands some undistributed income which accrued before the death of Justina and what had accrued since, and the corpus of the trust.

The trustee asks what it shall do with these funds.

The estate of Justina claims the income which accrued prior to her death, and Robert Millas claims the remainder of the income and the corpus of the trust. The Tiedtke interests claim all the funds in the hands of the trustee. They assert that the accrued income is theirs because it had not “come into the possession of” Justina, and that the corpus of the trust is theirs as heirs at law of the testator. Both claims are made under the last paragraph of item 11, quoted above.

The Tiedtke interests contend that the construction of the will made in the 1929 judgment, as to who should take the trust on the death of the daughter Justina, is not now binding upon this court or upon them — in other words, that that matter is not now res judicata.

That court had jurisdiction of the subject of the action — the construction of the will and codicils of Harry Tiedtke. It had before it all the parties interested in the matter, and they represented all those who are parties herein. In fact, two brothers in representative capacities commenced that action and apparently guided its course before the court. As before stated, this record does not contain a copy of the' petition in that action. There is appended to this petition what purports to be a copy of “paragraph IV” of that petition, which asked the court certain specific questions. What the rest of the petition contained or what it prayed for is not in this record. The parties thereto were the predecessors in interest of the Tiedtke interests here. It must be presumed that the court in its judgment responded to what it was asked to do and what the facts warranted, and no appeal or error was prosecuted from its judgment. Accordingly, this court is of the opinion that that judgment is binding upon it and the parties herein. In the language of the street, they made that bed and now they will have to lie in it; that is what is meant by res judicata.

Speaking of the verity of a judgment, Judge Ranney, in Bank of Wooster v. Stevens, 1 Ohio St., 233, 235, 59 Am. Dec., 619, said:

“It is a record of the highest character, importing absolute verity, and works a conclusive estoppel upon parties and pri-vies, to aver or prove anything against it. It speaks for itself, and when it has spoken, the parties to it at least, are bound to be silent.”

The last word in Ohio upon the principle of res judi-cata was spoken by Judge Hart in Vasu v. Kohlers, Inc., 145 Ohio St., 321, 344, 61 N. E. (2d), 707, 166 A. L. R., 855. His reasoning was condensed and carried into the syllabus in paragraph five as follows:

“A right, question or fact in issue which was necessarily determined by a court of competent jurisdiction in a judgment which has become final, cannot be disputed or litigated in a subsequent suit between the same parties, although the subsequent suit is based upon a different cause of action.”

By the 1928 judgment, the succession to the property in question is to be determined as of “the date of the death of Justina Margaret Tiedtke.” If she left a child surviving her, it takes the property; if not, it goes to the heirs at law of the testator.

Our courts have told us many times that the course of descent and distribution is subject to legislative control, and that laws governing that subject may be changed at the pleasure of the Legislature. 14 Ohio Jurisprudence, 99, Section 7.

In Smith v. Hunter, Trustee, 86 Ohio St., 106, 99 N. E., 91, a testator died in 1841. Portions of his estate were devised in trust for the use of his daughters during life “with fee simple to the heirs of said daughters.” One daughter never had a child, but in 1876, while a resident of Indiana, adopted a child under the laws of that state. She died in 1908 and the adopted child took the remainder. In 1841, when the will was made, neither Ohio nor Indiana had any statute for the adoption of children. The same argument made here, was made there by the blood heirs of the testator, that he never could have intended to include an adopted child in his beneficence. This case is cited here merely as high authority that the Legislature determines property succession, as was expressed by Judge Shauck, on page 116, when he said:

“We must presume that the will was drawn with the knowledge that as the testator’s daughters were then living [the one in question was then eight years old], they at that time had no heirs at law, that those heirs would be selected by the law in force at the time of their death, when for the first time they could have heirs at law. It must also have been comprehended that the laws of descent and distribution have been constantly subject to change throughout the ages * * *. To the validity of the claim of the adopted daughter, it is not necessary that the testator should have had the particular intention that the fund should pass to a child by adoption. It is sufficient that she is the person designated by the law as the heir of the daughter and is thus within the terms of the gift over, the fund having accomplished the testator’s dominant desire that the daughter should have an assured support during life.”

Prior to 1932, an adopted child could inherit from but not through its adopting parents. Section 8030, General Code (109 Ohio Laws, 179). That year, by Section 10512-19, General Code (114 Ohio Laws, 320, 474), it was provided that such child “shall be invested with # # * the rights of inheritance to real estate, or to the distribution of personal estate on the death of such adopting parent or parents as if born to them in lawful wedlock.”

In 1944, that section was amended and became Section 10512-23, General Code (120 Ohio Laws, 440), but the above-quoted part was not changed.

In effect, the Tiedtke interests contend that although the Legislature can say who the heirs at law of a person shall be, it can not say who shall be a child of another' as the term, ‘ ‘ child, ’ ’ is used in common speech and as it was used in the will of Harry Tiedtke in reference to his daughter Justina — in other words, that the Legislature could make Robert Millas Justina’s heir at law, but it could not make him her child. That is true, but the testator in this case elected to provide in his will that the remainder should go to his “heirs at law” and as construed in 1929 this meant “his heirs at law as of the date of the death of his daughter.” Therefore, the Legislature could and did, as of the date of the daughter Justina’s death in 1946, make Robert Millas, through her as his adopting parent, the sole heir at law of Harry Tiedtke. As such, Robert Millas takes the entire trust estate, including the income accumulated from the death of Justina Millas.

The estate of Justina Millas takes the income accumulated at the time of her death.

In the petition, instructions were requested with regard to the payment of certain legacies provided for in the will and codicils. On these matters, counsel have agreed on the proper directions to the trustee and these are approved and may be embodied in the judgment herein, the same as they appear in the judgment of the Probate Court.

Decree accordingly.

Fess and Conn, JJ., concur.


source: Caselaw Access Project

author: Thompson, J.

license: Public Domain

text:
    The Henry Furnace Co., Appellee, v. Kappelman et al., Appellants.
    (No. 22414
    Decided March 24, 1952.)

      Messrs. Krueger, Gorman & Davis, for appellee.

      Messrs. Wyner & Wyner, for appellants.
   Thompson, J.

This case has been appealed to this court on questions of law from a judgment of the Common Pleas Court of Cuyahoga County granting to plaintiff an injunction permanently enjoining the defendants, Kappelman and The Moncrief Furnace Company of Cleveland, Inc., from carrying on business in the corporate name of the latter defendant.

The facts established by the pleadings and the evidence may be briefly noted. Plaintiff, The Henry Furnace Company, since 1943, has engaged in the Cleveland area in the manufacture of furnaces bearing the trade name and label of ‘ Moncrief Furnaces. ’ ’ Some of the Moncrief furnaces are operated by gas, others by oil, and there are various models in different price ranges. Plaintiff has been the only manufacturer of Moncrief furnaces in this area since 1943, when it acquired by purchase the plant, patents and all other rights of The Henry Furnace & Foundry Company, which latter company together with its various predecessors, Henry & Scheible Company, The T. E. Henry Furnace Company and Henry Miller Foundry Company, had manufactured at least since 1905 a furnace similarly known in the trade as a Moncrief furnace. The Henry Furnace & Foundry Company, and its immediate predecessor, The T. E. Henry Furnace Company, prior to the acquisition of its plant and assets by plaintiff, had sold its product, the Moncrief furnace, throughout the United States, with the exception of the states of Georgia, Florida, North Carolina and South Carolina. Under a consent decree entered into on September 30, 1914, The T. E. Henry Furnace Company and one S. P. Moncrief, in a law suit in a Georgia court, had provided that S. P. Moncrief and his associates should be entitled to the exclusive use of the trade name, “Moncrief,” in the four states mentioned; that in the states of Alabama and Mississippi the said Moncrief and The T. E. Henry Furnace Company should be entitled to use the trade name, ‘ ‘ Moncrief, ’ ’ in common; and that The T. E.. Henry. Furnace Company, its successors and assigns should be entitled to the exclusive use of the trade name, “Moncrief,” on furnaces sold in all other states of the United States and in foreign countries. (Plaintiff’s exhibit 26.) It should be added that there is testimony in the record that in Dallas, Texas, a company under the name of Moncrief Furnace & Manufacturing Company at the present time is engaged in selling a furnace known as the M.F.C. DeLuxe but its field appears definitely limited to that state.

The petition of The Henry Furnace Company alleged that its business and that of its predecessors has been conducted in Cuyahoga county through, several distributors and approximately 60 dealers. The testimony disclosed that since 1943 and up to August 1951 plaintiff spent $353,820 in advertising its Mon-crief furnaces and accessories. Of this amount $73,-879.99 .was spent in Cuyahoga county. Total sales were more than $24,000,000 during the same period, of which $6,511,635 constituted sales in Cuyahoga county.

Plaintiff’s petition asserted that at no time prior to March 18, 1951, had anyone except plaintiff, its authorized dealers and distributors manufactured or sold furnaces under the name, “Moncrief,” in Cuya-hoga county, Ohio, such name having theretofore been exclusively employed in this territory by plaintiff and its predecessors. The testimony bears out these claims. Plaintiff, in its petition, further alleged that by its action and that of its predecessors, distributors and dealers in advertising, selling and servicing furnaces under the name, “Moncrief,” a valuable goodwill had become attached to plaintiff’s product.

The petition alleged that on March 18, 1951, defendant Kappelman filed articles of incorporation of The Moncrief Furnace Company of Cleveland, Inc., defendant corporation, with the Secretary of State of Ohio and that the purpose of the organization by defendant Kappelman of the defendant corporation was to sell plaintiff’s and other furnaces as Moncrief furnaces, with the deliberate intent and purpose of deceiving the public and of leading the public to believe' that the defendant corporation was the manufacturer of plaintiff’s furnaces. Plaintiff alleged further that, immediately after the filing of articles of incorporation of the defendant company, the defendants advertised Moncrief furnaces and offered them for sale. The petition asserted that the acts of the defendants constituted unfair competition and that the business and goodwill of plaintiffs, its distributors and dealers and products would be gravely damaged if such acts on the part of defendants were permitted to continue. Plaintiff asked that defendants be enjoined from doing business under the name of The Moncrief Furnace Company of Cleveland, Inc., and from advertising or otherwise representing themselves to be the manufacturers of Moncrief furnaces.

The answer of defendants admitted they were in the business of selling furnaces and that defendant corporation was incorporated under date of March 18, 1951, without notice or consent of plaintiff. The answer denied each and every allegation of plaintiff’s petition not admitted therein.

At the trial, plaintiff introduced testimony of company officials establishing its exclusive use in Cuya-hoga county of the trade name of Moncrief Furnaces as well as data as to its extensive sales and advertising. Plaintiff’s 121 exhibits consisted primarily of examples of catalogue and trade advertising and also weekly newspaper advertising conducted by plaintiff in Cuyahoga county newspapers. A sample of such latter advertising is plaintiff’s exhibit 33, a scrapbook consisting of actual advertisements which appeared in 17 newspapers published in Cuyahoga county during the period February 11, 1945, through July 13, 1945. This revealed advertising each week by The Henry Furnace Company of its Moncrief furnaces in four English language newspapers (Catholic Universe Bulletin, Cleveland News, Cleveland Plain Dealer and Cleveland Press) and advertisements appearing in foreign language newspapers listed, comprising one Italian, Rumanian, Bohemian, Lithuanian and Hungarian, and two Slovenian, Yiddish, Polish, and German publications. Other exhibits of plaintiff similarly showed newspaper advertising during other years between 1943 and 1951.

In addition to its detailed breakdown of testimony relating to advertising, plaintiff called the defendant Kappelman as if under cross-examination. The latter admitted that there is no individual connected with the defendant corporation bearing the name of Moncrief and that the corporate name of defendant was selected with knowledge of plaintiff’s business.

At the close of plaintiff’s case, defendants moved that plaintiff’s petition be dismissed and for á judgment in their favor. This motion was overruled by the trial court and defendants thereupon rested their case without the introduction of testimony, merely renewing their motion to dismiss. The trial court thereafter granted judgment for plaintiff and permanently enjoined defendants from doing business in Cuyahoga county in the name of the defendant corporation. Defendants are the appellants in this court. We shall refer to the parties as they appeared in the trial court.

Two grounds of error are urged by defendants in this court: First, that the judgment of the trial court was erroneous since the evidence failed to reveal that the defendant corporation was in actual competition with plaintiff, and, second, that lack of exclusive use of the trademark, “Moncrief,” should have caused a denial of equitable relief to plaintiff.

With respect to the first assignment of error, defendants contend that the trial court improperly enjoined them from doing business in their present corporate name since, they claim, there was no actual competition indicated between the plaintiff and the defendants. Defendants point out that plaintiff is a manufacturer while defendant corporation is a retailer. They urge that since plaintiff, sells to dealers and to distributors and not to the public or to ultimate consumers, there is no actual competition between them. They assert that courts of equity grant relief in unfair competition cases only where the competition is actual, that is, only where the defendant “deals in competitive goods or services or is engaged in a competitive business. ’ ’

Although pointing out that the cases are not in agreement, counsel for defendants refer to the view expressed in 52 American Jurisprudence, 573, Section 93, that there cannot be unfair competition unless there is, in fact, competition. The value of the reference to that page of the text, however, is weakened if one examines page 576 and following of the same authority, stating that the more recent cases recognize the right to equitable relief in many circumstances even where the competition is not for the same market. Counsel for defendants further point out that no Ohio cases are cited in support of the proposition stated in 39 Ohio Jurisprudence, 394, Section 51, that the doctrine of unfair competition is not confined to cases of actual market competition between similar products.

While we grant that the cases in Ohio upon this precise point are few, and apparently none in Ohio had been decided at the time of the statement in Ohio Jurisprudence, we find a subsequent Ohio ease decided in 1937, Hugo Stein Cloak Co. v. S. B. Stein & Son, Inc., 58 Ohio App., 377, 16 N. E. (2d), 609 (motion to certify overruled March 16, 1938), a decision by the Court of Appeals of the Sixth Appellate District, which holds that direct competition for the samp market is not required in order to authorize a court of equity to grant relief for .unfair competition. The court in that case actually went further than the trial court in the instant case for in the Stein Cloalt Company case plaintiff and defendant were corporations operating stores which sold noncompeting products. They were in close proximity on the same street and the owners of each corporation bore the same family name of Stein, but plaintiff was engaged in the retail sale of clothing for women while defendant was engaged in the retail sale of diamonds and jewelry. The plaintiff corporation had been in business in Toledo for more than thirty years and it advertised itself not by the full corporate name but by use of the name “Stein’s,” as a trade name. Plaintiff had spent large sums of money in making its trade name known to the public and had had the name registered as a trademark. The defendant had never used the single word, “Stein’s,” as a trade-mark or in newspaper advertising until thirty years after plaintiff commenced to use that name. In the fall of 1936, defendant remodeled its store front and erected two neon electric signs bearing the single word, “Stein’s,” across the front of its store. It also commenced, at the same time, to carry its advertising under the one word, “Stein’s.” There was evidence of .confusion on the part of the public and that a number of persons came to plaintiff’s store in the fall of 1936 inquiring about jewelry. The plaintiff therefore asked for equitable relief alleging that it had used the trade name, “Stein’s,” for thirty years and that its business repution, identity and goodwill had been merged into the distinctive word, “Stein’s,” rather than in its corporate name. Plaintiff charged that by reason of the adoption by defendant of the word, “Stein’s,” to the exclusion of other descriptive matter, the public had been and would continue to be confused and misled and that defendant was making unwarranted profit by using the plaintiff’s trade name. Upon trial of the case it was conceded that the lines of business of the parties were not competing lines and the defendant urged that the protection of trade names was not applicable to noncompeting businesses. None the less, the court granted the relief requested. While recognizing that the defendant, according to the record, enjoyed a reputation for fair dealing and honesty, the court declared that plaintiff was not required to entrust its own goodwill or any part of it to the defendant’s keeping. In its opinion, the Court of Appeals declared at page 382:

“Under the overwhelming weight of authority the appellant is entitled to protection against the use, by another, of its established trade name and trade-mark in such manner as to mislead the trade and the public to believe that when they are dealing with one they are dealing with the other, or in such manner that such use results, or may result, in appropriation of the goodwill, a property right of the other' — in the first case a fraud upon the public; in the second, an infringement of a property right.”

In the Stein Cloak Company case, it will be seen that relief was granted the plaintiff even though defendant was selling jewelry and plaintiff was selling clothes. Such relief was therefore not granted on the basis that the parties were vying for the same market, but on the score that plaintiff was entitled to be protected from confusion with the defendant and from consequent loss of investment and goodwill. While courts in the early unfair-competition cases enjoined a defendant who was passing off his goods as those of plaintiff, the Ohio case referred to, and other soundly based decisions, have enjoined acts of a defendant confusing or tending to deceive the public, as well as acts indicating an effort to obtain a “free ride” based on plaintiff’s investment in his business and reputation.

For one of the best statements on the development of the law of trade-marks and their protection, see 38 Harvard Law Review, 370, and the tabulation of cases in an annotation in 148 A. L. R., 12, entitled “Actual Competition as Necessary Element of Trade Mark Infringement or Unfair Competition,” particularly the cases cited at page 22 and following, under the subheading, “Modern View.”

One of the cases relied on in the opinion in the Stein Cloak Company case, and a leading ease in the federal courts, is Vogue Co. v. Thompson-Hudson Co., 300 F., 509 (certiorari denied 273 U. S., 706, 71 L. Ed., 850, 47 S. Ct., 98), a decision by the Sist.h Circuit Court of Appeals in 1924. In that case, Vogue Magazine was held entitled to restrain the defendant from use of its trade name, in a market in no sense competing. Defendant was selling hats while plaintiff sold magazines. Judge Denison, in his opinion, pointed out that the more recent cases involving unfair competition authorize relief even though the competition may not be for the same market. He further suggested that a court of equity has authority to grant relief, irrespective of the feature of competition, where a defendant seeks to secure to himself the benefits, of plaintiff’s reputation acquired by investment and trade through the years. Judge Denison declared: “there is no fetish in the word 'competition.’ The invocation of equity rests more vitally upon the unfairness.”

The cases similarly holding that equity may act regardless of the showing of actual competition are numerous in recent years. As stated in the note in 38 Harvard Law Review, 370, 372, previously cited:

“Courts of equity in these unfair competition cases are seeking to protect the good-will and reputation of the plaintiff. Insistence by the courts upon the presence of competition between the parties can only be justified upon a theory that good-will and reputation can only be damaged by competitors. But such a theory is untenable, in the light of human experience., If the defendant’s conduct is likely to cause confusion of the traders, so that the public believes or is likely to believe that the goods of the defendant are the goods of the plaintiff or that the plaintiff is in’ some way connected with or is a sponsor for the defendant, then a sufficient case is made out for injunctive relief. The result of a contrary rule would make the good-will and reputation of the plaintiff depend not only upon the conduct of the plaintiff but also upon the acts of the defendant and the excellence, or, what is more likely, the inferiority, of his products.”

One of the well reasoned cases is Lady Esther, Ltd., v. Lady Esther Corset Shoppe, Inc. (1943), 317 Ill. App., 451, 46 N. E. (2d), 165, 148 A. L. R., 6. In that case, the Illinois Appellate Court granted an injunction to a cosmetic concern against a corset shop incorporated under a similar name. Although no one was likely to be mistaken in assuming that the two concerns were selling the same product, the court found equity was able to grant relief to prevent deception and protect goodwill. The court declared:

“In the instant case we think it clear that the public might be deceived into thinking there was some connection between the defendant and the plaintiff companies. And the good-will of plaintiff, which it had built up at great expense over a period of years, would be whittled away. Courts of equity ought not to be so feeble as to be unable to prevent this. And the fact that defendant received a charter to use the name ‘Lady Esther Corset Shoppe, Inc.,’ does not protect it.”

For further cases of similar import see annotation in 148 A. L. R., 12, at page 22; 1 Nims Unfair Competition and Trade-Marks (4 Ed.), 274, Section 91; Mantle Lamp Co. of America v. Aladdin Mfg. Co. (C. C. A. 7, 1935), 78 F. (2d), 426 (certiorari denied 296 U. S., 639, 80 L. Ed., 454, 56 S. Ct., 173); Standard Oil Co. of New Mexico, Inc., v. Standard Oil Co. of California (C. C. A. 10, 1932), 56 F. (2d), 973; Great Atlantic & Pacific Tea Co. v. A. & P. Cleaners & Dyers, Inc. (1934), 10 F. Supp., 450; Del Monte Special Food Co. v. California Packing Co. (C. C. A. 9, 1929), 34 F. (2d), 774; Maison Prunier v. Prunier’s Restaurant & Cafe, Inc. (1936), 159 Misc., 551, 288 N. Y. Supp., 529; American Insulation Co. v. Eternit Roofing Co. (District Court, 1926), 14 F. (2d), 235. Reference is likewise made to an article: “Relief in Equity Against Unfair Trade Practices of Non-Competitors,” by James F. Oates, Jr., 25 Illinois Law Review, 643.

On the general subject, see, also, Oldham’s “Trademark Law and Practice” 1948, Section 1, which declares as follows:

“The common use of the expression ‘unfair competition’ is misleading. It carries the implication of a rule that no longer prevails, namely, that a cause of action for ‘unfair competition’ presupposes the existence of competition between the parties.”

The author then states:

“It is rapidly becoming the established rule in most courts, however, that relief will be granted to restrain unfair practices regardless of the element of com-tition. ’ ’

It would appear that whatever reasons may have been given by early chancellors to explain their willingness to act in unfair competition cases, the fact is that the conscience óf the courts has responded, and properly responded, to the quickening complexities and needs apparent in modern business and to the widening recognition of its individual and public responsibilities. The law of the jungle lias long since given way to more orderly processes of law, so far as individual relationships are concerned, and this is similarly true in the field of trade. Courts today are readier to protect the individual in his business relationships and to insist that unfair commercial practices be restrained. In this connection, it is not competition, in and of itself, which concerns the court but unfair and unscrupulous business tactics.

We are not persuaded that the parties herein are not in competition merely because plaintiff is a wholesaler and the defendant company is a retailer, for they sell the same product — furnaces. It seems immaterial that plaintiff’s product finds its way to the public through the medium of distributors. 3 Bestatement of the Law of Torts, 608, Section 734. Sales are the measure of the business in either instance. Defendant admitted that it had purchased from plaintiff’s distributors and sold at least a few of plaintiff’s Mon-crief furnaces. Plaintiff’s exhibit 7 is a newspaper advertisement which defendants inserted in the Cleveland News under date of March 27, 1951, only a few days after incorporation, advertising and picturing for sale at $369 a furnace labelled “A Moncrief steel gravity gas furnace.” Very possibly the Moncrief furnaees purchased by defendants from plaintiff’s distributors and then resold were acquired to satisfy the demands of certain of defendants’ customers, who would take nothing other than a Moncrief furnace. Can the defendant corporation with any sincerity urge that it will not again sell a Moncrief furnace and that it will thus eliminate direct and unfair competition with plaintiff? Surely not, for the more furnaces sold by defendant of a different type than Moncrief, the more competition there will be, and the greater impairment to plaintiff’s trade. This would not be of vital importance, since competition in and of itself is not a matter calling for protection, were it not that, in conjunction with it, use by defendants of the name, “Moncrief,” is a practice certain to divert plaintiff’s customers to defendants’ door. Under such circumstances it is unlikely that they will ordinarily depart without being sold a substitute, if it be furnaces they seek. If they receive better furnaces than plaintiff’s, they will not suffer as much as plaintiff, but if the furnaces are of an inferior grade, plaintiff will suffer and the customers likewise will be injured and deceived.

We do not have here a case where defendant is being deprived of the use of his own surname by being enjoined from use of the name, Moncrief. (Even in such circumstances relief has been granted by Ohio courts. Stern Furniture Co. v. Stern, 83 N. E. [2d], 804, a decision by this court in 1948. See, also, on general proposition, Cloverleaf Restaurants, Inc., v. Lenihan, 79 Ohio App., 493, 72 N. E. [2d], 761.) We have a case where, with all the world to choose from, defendants knowingly adopted as a corporate name a trade name of peculiar meaning to the particular business which had been developed and enhanced by plaintiff through the years. It was a name become of sufficient value so that defendants apparently hoped to cash in upon it, and to reap where they had not sowed.

We believe the evidence makes out a case of actual competition between plaintiff and defendants, although it is likewise our opinion that proof of actual and direct competition was not required in order to entitle plaintiff to an injunction. The use of another’s reputation may be as disastrous as the outright taking of his trade. Modern courts give standing to a name and protect it as a property right.

Holding the views indicated, we find no error in the action of the trial court so far as the first assignment of error is concerned.

With respect to the second assignment of error, plaintiff’s evidence established exclusive prior use of the trade name within the area where the injunction was sought and this is all that is required. Aultz v. Zucht (Texas, 1919), 209 S. W., 475.

The judgment of the Common Pleas Court is affirmed.

Judgment affirmed.

Skeel, P. J., and Hurd, J., concur.


author: Phillips, J.

text:
    The State of Ohio, Appellee, v. Zidak, Appellant.

      (No. 870
    Decided May 16, 1951.)

      Mr. William H. Irwin, prosecuting attorney, for ap-pellee.

      Mr. Paul V: Waddell and Mr. Austin C. Furlee, for appellant.
   Phillips, J.

The grand jury of Belmont county indicted defendant for unlawfully, maliciously and forcibly breaking and entering a store of the Great Atlantic & Pacific Tea Company, situated in Bellaire, Ohio, during the night season on the 8th day of April 1950 with the intent to commit larceny therein.

Upon trial the jury found defendant guilty as charged in the indictment laid under Section 12438 of the General Code.

The trial judge entered judgment of guilty and imposed sentence upon the verdict of the jury and overruled defendant’s motion for a new trial. Defendant appealed from that judgment to this court on questions of law.

By assignments of error defendant contends that “the court erred in the admission of evidence offered by the plaintiff and objected to by the defendant; erred in the rejection of evidence offered by the defendant; erred in overruling defendant’s motion for mistrial made during the offering of plaintiff’s evidence ; erred in overruling defendant’s motion for mistrial made at the close of plaintiff’s case”; and “erred in overruling defendant’s motion to require the plaintiff to produce an exhibit offered by defendant.”

By such assignments of error defendant charges the •state’s attorney with misconduct “in exhibiting to the jury a. criminal record report of the defendant, including picture and fingerprints, and which record was not introduced in evidence”; and charges a juror with misconduct ‘ £in that a juror inspected a criminal record report of the defendant, including picture and fingerprints, which report was not introduced in evidence.”

Finally defendant contends that there was “irregularity in the proceedings of the court and jury to which defendant objected at the time”; that “the verdict of the jury is against the manifest weight of the evidence and appears to have been given under the influence of passion or prejudice ’ ’; and that there are “ other errors of law apparent on the face of the record prejudicial to defendant and by reason of which he was prevented from having a fair trial.”

One of the state’s witnesses identified defendant as the man he saw walking in the center of the dimly lighted store of the Great Atlantic & Pacific Tea Company about eleven o’clock on the night of April 8, 1950, and testified that at that time a horn was sounded on a truck parked in front of such store, and the lights thereof turned on, and that he saw defendant leave the office or cage of such store and go toward the rear thereof.

That witness reported what he had seen to the police department of the city of Bellaire, and a member of that department returned with him to such store, in front of which the truck was still parked, and in which two men were seated. He designated defendant seated therein to the police officer as the man he had seen in the store. Whereupon such man immediately left the truck and started to run. The police officer pursued him and shot at him but did not catch or arrest him.

No person testified to seeing defendant break or enter the store of the Great Atlantic & Pacific Tea Company, the door of which had been pryed off. An assortment of tools, including a screw driver, saw, pincers such as blacksmiths use, á flashlight, coal cutter, iron-wrecking bar, large punch, and a malleable iron plate with four seven-sixteenth inch holes bored in it, one on each corner thereof, and an additional hole running the entire length of the center thereof, which was described as a “puller,” found in the truck in which defendant had been seated and which the state claimed were burglar’s tools, were identified as the property of the owner of such truck.

Defendant introduced testimony of witnesses who testified they saw him in a Wheeling bus station between 8:30 and 9 o’clock on the night of Saturday, April 8, 1950, at which time he allegedly bought a ticket for Pittsburgh. There is evidence that at the time he was in Pittsburgh he allegedly was seen in the store of the Great Atlantic & Pacific Tea Company in Bellaire; that he arrived at his home there with his son close to 12 o ’clock of that day, and left there on Easter Sunday to return to Bellaire, where he was employed. >

The trial judge permitted a former deputy sheriff of Monroe county to testify, over defendant’s objection, that when he was deputy sheriff of that county in the years 1931 to 1934 he brought defendant back from Louisiana to Monroe county to answer to the charge of receiving stolen property, and that he lodged defendant in the jail of that county. The trial judge sustained defendant’s objection to the introduction by the state of a purported record of Monroe county with reference thereto and his motion to strike all such testimony from the record of the case.

It is the claim of defendant “that the court erred in admitting such testimony over defendant’s’ objection, and that the facts testified to and the prejudice thereby created in the minds of the jurors could not be erased from the minds of the jurors by the court’s instructions to disregard the same.”

By brief defendant says:

“We assume that the state intended to prove the commission of a similar crime by defendant. It wholly failed to properly do so and only showed that the defendant had been arrested and had been in jail.

“The state made no explanation of the purpose for which such testimony was being offered. If it was offered for the purpose of attacking defendant’s character or reputation, then it most certainly was erroneous and prejudicial because defendant’s character and reputation had not been put in issue by the defendant and was not put in issue in the defendant’s case. Such testimony was' not admissible for the purpose of attacking defendant’s credibility as he had not testified and did not testify in the case.

“If such testimony was offered to prove the motive, intent, etc., of the defendant, under the provisions of Section 13444-19, G. C., it was erroneous and prejudicial. ’ ’

Upon conclusion of the testimony of such deputy sheriff, counsel for defendant said, “now your honor there was no follow-up, ’ ’ and the bill of exceptions discloses the following proceedings were had:

“Court: Do you want the jury taken out?

“Mr. Furbee: Perfectly willing that they remain here.

“Mr. Furbee: The defendant now moves that all of the testimony of the witness, Clarence Crawford, with reference to the paper marked ‘PX-14’ be stricken from consideration by the jury and the jury instructed to disregard it, and defendant further moves that ail of the testimony of the witness, Clarence Crawford, with reference to Joseph Zidak be stricken and the jury instructed to disregard it.

“Court: The motions will be sustained. Members of the jury, you are instructed that the testimony of Clarence Crawford, who just left the witness stand, is stricken from the record in this case and that you will totally disregard that evidence and give no farther consideration of the same in this case, the same as if it had not even occurred.

“Mr. Furbee: The defense has another motion to make that we would like to make in the absence of the jury.

“Court: Dictate it into the record.,

‘ ‘ Mr. Furbee: The defendant moves, first: that the court instruct the jury to return a verdict of ‘not guilty’ and discharge the defendant for failure of proof. Second: the defendant moves the coart that the defense be permitted to inspect the papers and pictures and fingerprint sheet that the prosecution counsel had on their table during a part of this trial in the presence of the jury and which was inspected by at least one member of the jury, and we ask to be heard on these motions.

“Court: Both motions are overruled.

“Mr. Furbee: Defendant excepts to the ruling of the court and excepts to the refusal of the court to permit counsel to be heard upon this motion. Defendant now moves that the court declare a mistrial in this case for the reason given in the previous motion for mistrial which is that this jury was permitted to sit in the Court of Appeals and hear the prosecutor and other counsel argue a murder case and listen to the comments of the Court of Appeals on crime and punishment thereof, and for the further reason that during this trial the prosecutor had on his table for a period of the trial a paper that appeared to be a criminal record report with a picture and iingerprints purporting to be that of Joseph Zidak, and that it was in plain sight of the jury, and in addition thereto, one of the jurors picked up the pictures and record and inspected them. Said paper and pictures were not introduced in evidence and are not in this case and, therefore, it is error for the jury to have this information that they now have.

“Court: Do you want to argue that?

‘ ‘ Mr. Purbee: I am very seriously wanting to argue it.

“Court: Overruled.

“Mr. Purbee: Exceptions.

“Mr. Purbee: The defense offers in evidence, in support of the motion for mistrial and for that purpose only, the pictures and paper in question and demands that the prosecutor produce' said paper for this record.

“Court: Overruled.”

At the close of the state’s case in chief, the trial judge overruled defendant’s motion to compel it to produce such criminal record report and picture for the inspection of defendant’s counsel, to which reference is made in disposing of another assignment of error.

Defendant waived his right to rely on the claimed error that the trial judge erred to his prejudice in overruling his motion for a verdict to be directed in his favor when he accepted the’ ruling of the court and proceeded with his defense and introduced evidence in his own behalf. Halkias v. Wilkoff Co., 141 Ohio St., 139, 47 N. E. (2d), 199.

With reference to the testimony of the deputy sheriff, the admonition and instructions of the trial judge to the jury were couched in plain, simple, clear and unambiguous language, and the assumption is that the jury heeded his admonition and obeyed his instructions. In the absence of a showing of anything to the contrary, we can indulge in no presumption other than that the jury disregarded such testimony and gave it no consideration. We conclude that no error prej udicial to defendant intervened, as urged in this assignment of error.

Apparently at that time counsel for defendant was. satisfied with the ruling of the trial judge for he did not request a mistrial on the ground that any error allegedly committed by the trial judge in that respect had not been cured. Rather he moved for a mistrial on the two specific grounds stated in his motion quoted supra.

Now we come to consider defendant’s assignment of error that there was misconduct of the prosecuting attorney and the jury, to which reference was made supra..

Counsel for defendant by brief state:

“During the offering of the state’s case in chief the prosecuting attorney placed upon his table in a position close to the jury box and in plain view of the jurors a criminal record report of this defendant, which had as the top page thereof a picture of the defendant with fingerprints. This report and picture were picked up and examined by one of the jurors during a recess of the trial. At that time counsel for the defendant protested to the trial court and the prosecutor then, at the court’s direction, removed such report and picture from the view of the jury. These facts are substantiated by an affidavit filed in support of motion for new trial. Said report and picture were not offered-in evidence by the state and at the close of the state’s case defendant made a motion for mistrial for such misconduct of the prosecutor and jury (Rec. p. 75). This motion for mistrial was overruled and we contend that the trial court was in error in so doing. ” "

In view of lack of evidence that any juror examined any one of such exhibits and of positive evidence that when attention of the state’s counsel was directed to their, presence they were removed immediately, we conclude that defendant was not prejudiced thereby as alleged in this assigned ground of error.

As stated in the motion of plaintiff’s counsel quoted supra, defendant’s trial was recessed for the purpose of permitting this court to .occupy the courtroom in which his trial was being held to hear the appeal of a defendant charged with murder in the perpetration of rape of a young girl. Now it is claimed that as the result thereof “irregularity in the proceedings of the court and jury” intervened to defendant’s prejudice. In the interest of accuracy we quote from defendant's brief his contention with reference to this assignment of error.

“The prosecutor went into considerable detail in describing the atrocities of the crime which was the attempted rape and murder of a young girl. Some members of this court commented at length upon crime, .detailed facts of another murder case recently decided by this court and also deplored the attitude of some people who were not in favor 'of the punishment provided by law for crime. The jurors in this case sat among the audience in the courtroom and listened to all of the foregoing proceedings and comments with reference to the Doty murder case. The foregoing facts are sustained by an affidavit filed in support of motion for new trial.

“At the first opportunity, which was the reconvening of the trial of this case immediately following-said proceedings before the Court of Appeals, counsel for defendant made a motion for mistrial based upon the irregularity above mentioned (Rec. p. 5). The court overruled this motion without even permitting counsel to be heard upon the same. It is the contention of defendant that this irregularity was prejudicial to the defendant and prevented him from having a fair and impartial trial of his case by jurors uninfluenced by other matters. The jurors could not help but be impressed by what they heard the prosecutor say in support of the conviction of Doty. It was a so-called sensational crime. If goes without saying that these laymen jurors, composed of housewives, farmers and laborers, would be impressed by the comments made by this court. It was likely the only time that many of these jurors had ever been present at a session of the Court of Appeals. What a judge of this court had to say about crime and the deplorable attitude of some people in not being willing to apply the punishment provided by law to a crime could not help but impress at least some of these jurors. The trial court admonished the jurors from time to time during the trial as to their conduct as jurors and the importance of not talking to people about this case and so forth. The purpose of such admonition is to prevent the jurors from being influenced by other than the evidence and the law as given them by the court. To break into the middle of their attention and thinking of the trial of this case with the irregularity mentioned circumvents the admonition of the trial court. Such happenings most certainly constituted an irregularity in the trial of this case and it is a reasonable presumption that it would be prejudicial to the defendant.”

Assuming that certain members of the jury were present in the courtroom during the argument of such appeal, there is nothing indicating that their presence in the courtroom or anything they may have heard during argument of such appeal in any way tended to influence the jury, or any of its members, to the defendant’s prejudice, or induced them to render their verdict in the case we review other than upon the law and the evidence.

While defendant has assigned he has not argued the ground of error that the trial judge erred in his general charge to the jury. Accordingly we will not pass upon this assigned ground of error.

Defendant’s counsel have failed to call our attention to “other errors of law apparent on the face of the record prejudicial to defendant and by reason of which he was prevented from having a fair trial,” as alleged as a ground of error, or to comply specifically in respect thereto with the provisions of Rule VII of this court that his briefs ‘ ‘ shall contain a statement of the questions presented and a succinct statement of so much of the cause, referring to the pages of the record, as is necessary to show how the questions arose, together with a statement of the authorities relied upon.” Accordingly we will not pass upon this assigned ground of error.

We have read the bill of exceptions submitted to us for review, and as the result thereof conclude that we can not reverse the judgment of the trial court on the urged ground that it is against the manifest weight of the evidence or was rendered under the influence of passion or prejudice.

Grieeith, J., concurs.

Nichols, P. J., concurs in the judgment.


author: Conn, J. Fess and Savoed, JJ.,

text:
    Massaro, Appellee, v. Bashara, Appellant.
    (No. 3442
    Decided November 19, 1951.)

      Mr. R. R. Thombs, for appellee.

      Mr. Russell G. Mock, for appellant.
   Conn, J.

Plaintiff brought an action in the Common Pleas Court to recover a judgment against defendant for $1,000, interest and costs. It appears that defendant had entered into negotiations with plaintiff for the sale of a dwelling house on Euclid boulevard in the city of Youngstown, which defendant then had under construction and which was nearly completed, and that plaintiff had deposited with defendant the sum of $1,000 for which defendant issued his receipt..

The cause of action pleaded in plaintiff’s petition is one in assumpsit or debt for money had and received. To this petition, defendant filed an amended answer and cross-petition wherein he admits receiving from plaintiff the sum of $1,000, which he avers was a part payment on a dwelling house and that he was ready, willing and able at all times to complete the contract of sale but that plaintiff refused to do so.

In the cross-petition, defendant alleges that he was damaged in the sum of $1,035 by reason of plaintiff’s refusal to complete the purchase of the property. These affirmative allegations of defendant are denied in the reply and plaintiff avers that if it should be determined there was an oral contract between the parties, such contract was within the statute of frauds and unenforcible.

It is admitted in the pleadings or shown by the evidence that at the time of the negotiations the construction work was nearly completed; that the receipt given plaintiff upon the payment of $1,000 recited that it was “to apply on house on Euclid avenue. Bal. as per arrangement”; that plaintiff could select the lighting fixtures and linoleum for the kitchen; that ■plaintiff made application for a loan at a local bank, which later was approved but was not completed by plaintiff; that defendant finished the construction of the house; and that about three months later plaintiff demanded the return of the money he had paid defendant.

Throughout the proceedings, plaintiff claimed that he and defendant had not entered into any agreement for the purchase of such property, for the reason that when he deposited the money he had reserved the right to have the deposit returned to him if later he elected not to complete the purchase of the property. This claim was controverted by defendant and defendant’s evidence tended to show that he was ready, able and willing to complete the sale. Defendant also introduced evidence tending to establish his claim for damages under his cross-petition.

At the conclusion of all the evidence the court sustained a motion of plaintiff to direct a verdict in his favor on the. cross-petition. The court thereupon stated for the record that “the case will then go to the jury on the issue of whether there was a contract or not, and, if there was, who breached it, plaintiff or defendant, which the court will, elaborate in the charge, of course.”

The jury returned a verdict for plaintiff for the full amount of the deposit, with interest. Judgment was entered on the verdict.

Defendant appeals on questions of law. The errors relied on include the following: Directing a verdict in favor of plaintiff on defendant’s cross-petition and striking same from the record; error in forms of verdict submitted to the jury; error in the general charge; and that the judgment is against the manifest weight of the evidence and contrary to law.

We will consider first the alleged error in directing a verdict in favor of plaintiff on defendant’s cross-petition. The trial court adopted the view of the plaintiff that the claim in the cross-petition of defendant was barred by the statute of frauds (Section 8621, General Code), for the reason that the claim grew out of an oral contract for the sale of real estate and as such was unenforcible.

As already pointed out, plaintiff’s action appears to be one for money had and received, and his right to recover the money deposited with defendant is grounded on the claim that there was no subsisting contract between him and the defendant. Under these circumstances, the defendant could not refuse the return of the amount of the deposit, as such refusal would result in his unjust enrichment. Hummel, Sr., v. Hummel, 133 Ohio St., 520, 14 N. E. (2d), 923.

If the contract between the parties were within the statute of frauds and, therefore, unenforcible, it is clear that plaintiff would not have the legal right to relief thereon and neither would the defendant be entitled to any relief had he brought an action on the contract for specific performance, or if he sought such relief on his cross-petition in an action brought by plaintiff. However, plaintiff does not predicate his action on a contract within the statute of frauds, as the allegations in his petition clearly. disclose. Middleport Woolen Mills Co. v. Titus, 35 Ohio St., 253; Swee v. Bregenzer, 19 C. C. (N. S.), 563, 32 C. D., 554.

The answer and cross-petition of defendant raised issues of fact. Had the plaintiff the right to the return of the deposit or, putting it the other way, was the defendant ready, willing and able to .perform? There w;as sharp conflict in the evidence. On defendant’s cross-petition, the further issue of damages sustained by him was raised by reason of the alleged default of plaintiff to perform his contract.

The issues raised on the pleadings were clearly outlined in the court’s general charge to the jury. Briefly stated, the court instructed the jury that if it found there was no agreement between the parties whereby plaintiff agreed to purchase this dwelling house, then plaintiff would be entitled to receive his money back. On the other hand, if the jury found there was a contract between the parties to purchase this property and the $1,000 was paid as partial payment on Lhe purchase price and the jury found further defendant was at all times ready, willing and able to complete the contract and carry it out, then plaintiff can not recover and the verdict should be for the defendant. These instructions given by the court followed the general rule as appears by the reported cases. We cite the following authorities: Galagher v. Dettelbach, 24 C. C. (N. S.), 347, 34 C. D., 623; 19 Ohio Jurisprudence, 665, Section 159; 169 A. L. R., 187, 188; 49 American Jurisprudence, 868, Section 564; Schaefer v. Steuernagle, 114 Misc., 546, 187 N. Y. Supp., 261.

Plaintiff was obliged to resort to parol evidence to support his claim on the petition that he had not entered into any contract with defendant. On the other hand, plaintiff seeks the protection of the statute on the issues raised on the cross-petition. His defense is necessarily predicated on a contract. In sustaining this defense, plaintiff was permitted to assume inconsistent positions in relation to the same subject matter. Under some authorities, where recovery is sought on the ground there was no contract, as in the instant case, plaintiff waives the protection of the statute. 37 Corpus Juris Secundum, 748, Section 246.

Section 11315, General Code, gives the defendant the right to ‘ ‘ set forth in his answer as many grounds of defense, counterclaim as he may have * *

Section 11317, General Code, defines a counterclaim as follows:

“A counterclaim is a cause of action existing in favor of one or more defendants against one or more plaintiffs or one or more defendants, or both, between whom a several judgment might be had in the action, and arising out of the contract or transaction set forth in the petition as the foundation of the plaintiff’s claim, or connected with the subject of the action or arising out of contract or ascertained by the decision of a court.

“Such counterclaim shall not be limited to the amount claimed by the plaintiff or defendant against whom such counterclaim is asserted.”

It is the opinion of the writer that the issues raised on the cross-petition of defendant áre well within the provisions of the above statutes; that is to say, if the defendant’s evidence sustained his claim, it is clear the alleged damages would be a counterclaim against plaintiff as they arose out of the transaction set forth in the petition, but any amount recoverable would be offset by the deposit made by plaintiff.

The related case law in Ohio is meager. We call attention to the case of Woldman v. Rapid Transit Land Sales Co. (Ohio App., 1928), 6 Ohio Law Abs., 685, wherein the issue of damages was raised on defendant’s cross-petition. The court held that the issue of damages should' have been determined and whatever damages defendant suffered were a proper setoff against plaintiff’s claim. In that case it does not appear whether the contract was oral or written. However, the court points out'that damages are not recoverable in the absence of a cross-petition setting up such cross-demand. See, also, Galagher v. Dettel-bach, supra.

In 36 Ohio Jurisprudence, 584, Section 97, the writer discusses the court’s duty to hear and determine issues in relation to 'counterclaim, and says:

“Where the allegation's in the answer and proof offered in their support come within the express terms, and also within the spirit, of the statutes relating to setoff and counterclaim, it is the court’s duty to hear and determine such claims, and failure to do so is reversible error.”

Defendant having set up his cross-demand and having tendered credible evidence to support it, directing a verdict in favor of plaintiff on defendant’s cross-petition was error and prejudicial to defendant.

The remaining errors have been' considered and it is onr opinion that they are' not well taken and should not be sustained.

The judgment is reversed and cause remanded for a new trial.

Judgment reversed.

Fess and Savoed, JJ.,

concurring. Plaintiff brought his action in assumpsit for money had and received under the principle of “unjust enrichment.” Although the action is an “action at law” it is equitable in its nature, liberal in form, and is to be determined by the application of equitable principles. Plaintiff contends that the deposit of $1,000 evidenced by the receipt was made on condition that it be returned in the event plaintiff elected not to purchase the property. Defendant contends that the deposit was a down payment — earnest money — upon the purchase of the property and that within a reasonable time thereafter defendant was ready, able and willing to convey the property to plaintiff. In his cross-petition defendant claims damages in the sum of $1,035 by reason of plaintiff’s breach of the alleged contract to purchase the property. Although plaintiff was permitted to establish his claim of the deposit of the money incident to negotiations for the purchase of the property, defendant was denied the right to orally establish his cross-petition for damages by reason of the statute of frauds.

The statute does not make a parol contract for the sale of land'void. By withholding a right of action upon it, it simply makes it voidable at the will of either of the parties. But neither party can be compelled to ignore considerations of equity, of good faith, and moral obligations which may arise from such parol contract, and to avoid it by pleading the statute of frauds. Lefferson v. Dallas, 20 Ohio St., 68, 74. In Sites v. Keller, 6 Ohio, 483, the court holds that upon a parol contract for the sale of land, the mere payment of the consideration does not take the case out of the statute of frauds, and draws the distinction that “after such acts of performance as possession or improvements, to rescind the contract would not restore the parties to their original situation; but full compensation for the payment of the purchase money is made by the restoration of principal and interest.” In other words, the court recognizes the right of the vendee to recover the purchase price paid under an oral contract to buy land. This is in accord with the general rule that payments made under a contract unenforcible by reason of the statute of frauds may be recovered back where the other party sets up the statute and declines to perform, or where the contract i's mutually abandoned.. 37 Corpus Juris Se-cundum, 778. If a purchaser may recover earnest money paid, when proof of the agreement is barred by the statute of frauds upon the principle of unjust enrichment, the vendor by way of cross-petition upon equitable principles should be permitted to prove by oral testimony such damage as he may have suffered as a result of the transaction. The same principle should apply to the circumstances presented in the instant case where the plaintiff contends there was no agreement on his part to purchase the property and the defendant claims there was such an agreement.

Since defendant’s claim for damages set forth in his cross-petition arises out of the same transaction set forth in the petition as the foundation of plaintiff’s claim, defendant was entitled to have his claim under the cross-petition submitted to the jury for determination, and the court committed error prejudicial to the defendant in dismissing the cross-petition.

Fess, Conn and Savord, JJ., of the Sixth Appellate District, sitting by designation in the Seventh Appellate District.


author: Wiseman, J.

text:
    Johnson, Appellant, v. Campbell et al., Appellees.
    (No. 4613
    Decided January 28, 1952.)

      Mr. A. A. Bunner and Mr. Russ Both/well, for appellant.

      Messrs. Dargusch, Garen, Greek & King, for ap-pellees.
   Wiseman, J.

This is an appeal on questions of law from an order of the Common Pleas Court of Franklin County dismissing plaintiff’s petition after sustaining a general demurrer, the plaintiff electing not to plead further.

The plaintiff’s petition is as follows:

“Defendant Fred B. Prophet Co. is a Michigan corporation for profit.

‘ ‘ On the 3rd day of April 1950, defendants composed and published in a written statement, a certain false and malicious libel, containing the false, malicious and defamatory matter, to wit that said plaintiff was dismissed from their employment because the said plaintiff was ‘ disloyal. ’ And furthermore on the 10th day of April, 1950, the defendants composed and published in a written statement, a certain false and malicious libel, to wit that said plaintiff was disloyal to us her employers.

“Plaintiff as a result of the aforementioned libels has been exposed to hatred, contempt, ridicule, shame and disgrace, deprived of public confidence, injured in her right to pursue gainful employment, and injured in her reputation, all to her damage in the sum of $25,000 dollars, for which plaintiff asks judgment.”

The trial court held that the petition did not state facts sufficient to constitute a good cause of action for libel.

It will be observed that the petition in the one instance alleges that the defendants charged the plaintiff with being disloyal, and in the other instance with being disloyal to her employers. In each instance, the charge of disloyalty is general and not specific, and as such is ambiguous and of a doubtful meaning. In the absence of an explantory allegation it may be assumed or reasonably inferred that the first statement referred to disloyalty to her employers. The plaintiff in her petition has not alleged extrinsic facts by way of inducement, or by direct averment, showing the defamatory or libelous meaning of the use of the word, “disloyal”; neither are special damages alleged. In the absence of such allegations a good cause of action is not stated unless the statement made is held to be actionable per se. The words used are susceptible of many different meanings, either of a defamatory or innocent significance. Where the words used are susceptible of an innocent interpretation they are not actionable per se, and in such case it is necessary to establish by inducement and innuendo the defamatory character of the words used. 25 Ohio Jurisprudence, 243, 244, Sections 106, 107; 33 American Jurisprudence, 219, Section 241; 53 Corpus Juris Secundum, 247 et seq. In 53 Corpus Juris Secundum, 43, it is stated:

“It has been held that words, in order to be defamatory per se, must be susceptible of but one meaning, and that an opprobrious one.” (See numerous cases cited.)

Specifically, we hold that the simple statement that a person is disloyal in connection with his employment, without more, is not libelous per se. The case of Ward v. League for Justice, 57 Ohio Law Abs., 197, 93 N. E. (2d), 723 (motion to certify overruled), is easily distinguishable upon the facts.

In our opinion the trial court properly sustained the demurrer and dismissed the action.

Judgment a,firmed.

Hornbeck, P. J1., and Miller, J., concur.


author: Matthews, J.

text:
    Dougherty, Gdn., Appellant, v. Iredale, Appellee.
    (No. 7567
    Decided April 14, 1952.)

      Messrs. Cowell & Flechter, for appellant.

      Messrs. Beclcer, Loeb & Beclcer, for appellee.
   Matthews, J.

This is an appeal on questions of law and fact by the plaintiff from a judgment in her favor enforcing a trust in her favor and directing the defendant to convey the legal title to her upon the payment of $5,580, with interest.

The plaintiff is the guardian of Luella Gillham. In her petition, she alleges that her ward is about 85 years of age and was and had been for four or five years mentally incompetent; that while incompetent she entered into a purported contract with the defendant, whereby he agreed to build a house for her upon real estate owned by her; that she had paid on account the sum of $3,020; and that the defendant induced Luella Gillham to transfer to him thé title to the premises upon which the house was being erected. The plaintiff prays that the conveyance be set aside and the defendant ordered to reconvey the premises and for general relief.

The defendant by answer admits the payment of $3,020 and that he took title to the premises, in trust, however, for Luella Gillham, and denies all other allegations. By cross-petition, the defendant alleges that he entered into a written contract with the plaintiff’s ward on January 22, 1951, to build a house for her, that he proceeded to build the house, that it is completed and is worth $10,085.52, leaving a balance due of $7,065,52, upon the payment of which amount he would reconvey the real estate to Luella Gillham, or her estate.

By reply, the plaintiff alleges that Luella Gillham had paid $3,620 to defendant’s agent on account of such building contract, admits that Luella Gillham had signed the purported contract as alleged in the cross-petition, and reaffirms that Luella Gillham did not have the capacity to make a contract at the time.

The evidence discloses that the contract to build and the agreement to hold in trust are in writing and that these written instruments were prepared by defendant. They show upon their face that the draftsman lacked experience and skill in such matters, but they do not indicate any intent to bind Luella Gillham by an improvident contract. The writing setting forth the terms under which the real estate was transferred to the defendant is entirely clear. It was transferred to enable him to assist Luella Gillham in raising money with which to finance the construction of the house. The construction contract, on the other hand, is general in its terms, the kind of a writing two inexperienced persons might prepare. It is general in its terms as to kind of structure to be built and states no specific terms as to payment other than a cash payment of $3,000 and another payment of $2,000 when the house is under roof. The' unspecified balance is payable upon completion of the building.

The contract, however, is specific in that • it provides that “all work to be done on time and materials basis.”

Evidence was introduced as .to the meaning of the above quoted provision. We are of the opinion that the provision excludes the defendant from charging any overhead expense and from adding any percentage of profit as is customary in a cost-plus contract.

The defendant proceeded to erect the house upon Luella Gillham’s land, and by the time this action was filed had substantially completed its construction, although there is evidence of some defects and lack of sound judgment in planning and choice of materials.

In the plaintiff’s brief it is said the “plaintiff does not want to and does not in any way expect to be enriched by holding the contract to be void and the deed void but would like to break even,” which is in conformity to the maxim that he who seeks equity must do equity. In view of that statement it would seem that very little purpose would be served in weighing the evidence as to the mental capacity of Luella Gill-ham at the time of these .events. We do observe that her testimony seemed to indicate an awareness of the significance of what had happened and was happening. The evidence also showed that her relatives — those now denying her capacity — knew of these transactions and did nothing while this building was in process of construction.

We find that the defendant is entitled to be paid on a cost of labor and materials basis, and that upon payment of the balance upon that basis, the plaintiff is entitled to have the real estate transferred to Luella Gillham.

While Luella Gillham alleged in her petition that she had only paid $3,020, she corrected that statement in her reply and also testified that she had paid $3,620 to the defendant’s agent. This agent did not testify, and we find that Luella Gillham should be given credit for $3,620, paid on account of construction of this building.

The defendant introduced evidence of the cost of the labor and materials. We find the evidence shows that cost is $7,282.04, from which a credit of $3,620 should be deducted, leaving a balance of $3,662.04.

Judgment against Luella Gillham may be entered for $3,662.04, with interest from the date of the entering' of the judgment, and a decree against the defendant directing him to retransfer the real estate to Luella Gillham upon the satisfaction of such judgment.

It is found also that the costs of this action should be taxed one-half against the plaintiff and one-half against the defendant.

Judgment accordingly.

Hildebrant, P. J., Matthews and Ross, JJ., concur.


author: Fess, J.

text:
    The State of Ohio, Appellee, v. Theisen, Appellant.
    (No. 630
    Decided April 21, 1952.)

      Mr. Herbert B. Freeman, prosecuting attorney, for appellee.

      Messrs: Miller & Miller, for appellant.
   Fess, J.

This is an appeal on questions of law from an order committing the defendant to the Lima State Hospital for examination and report for a period of not more than sixty days, in conformity with Section 13451-20, General Code, after conviction of the offense of improper exposure in violation of Section 12423-1, General Code. Pending the appeal, on application of the defendant, a judge of this court suspended the order of commitment and ordered the defendant released under the bond heretofore filed in the Common Pleas Court.

The state moves to dismiss the appeal on the ground that it is not taken from a judgment or final order, or after sentence and judgment.

The Supreme Court has recently reiterated that Section 6 of Article IV of the Constitution as amended is the sole source of jurisdiction of the Court of Appeals, and that such jurisdiction may not be enlarged by act of the General Assembly. Green v. Acacia Mutual Life Ins. Co., 156 Ohio St., 1, 100 N. E. (2d), 211. Cf. Hoffman v. Knollman, 135 Ohio St., 170, 20 N. E. (2d), 221. The opinion in the Green case, supra, at page 8, indicates that although the General Assembly may legislate as to the jurisdiction to review, it can not enlarge that jurisdiction with reference to anything except judgments or final orders. Therefore, “judgments or final orders” as used in the Constitution are what the Supreme Court says they are. Under the 1912 amendment, the term, judgments, was construed to include final orders. In 1922, in Chandler & Taylor Co. v. Southern Pacific Co., 104 Ohio St., 188, 135 N. E., 620, the Supreme Court held that the term, “judgments,” comprehends all decrees and final orders rendered by a court of competent jurisdiction, which determine the rights of the parties affected thereby. In reaching its conclusion that final orders were included in the term judgments, the court referred to the fact that prior to the adoption of the 1912 amendment' the Legislature had specifically defined the terms, “judgment” and “final order.” Prior to the adoption of the amendment, Section 11582, General Code, defined a judgment to be “the final determination of the rights of the parties in action. ” Section 12258, General Code, defined a final order to be one (a) affecting a substantial right in an action, when in-effect it determines the action and prevents a “judgment,” or (b) “an order affecting a substantial right” made either in a special proceeding or upon a summary application in an action after judgment. The court thereupon construed the term judgment to include final orders as defined in former Section 12258, General Code. It will be noted that Section 12223-2, General Code, defining a final order, except the part relating to overruling a motion for a new trial, comports with the decision of the Supreme Court in the Chandler case. That decision of course relates to civil cases, but the same reasoning should be applied with respect to the jurisdiction of the Court of Appeals in criminal cases. In other words, the terms, judgments and final orders, should be construed to mean those orders which were regarded as judgments and final orders prior to the adoption of the 1912 amendment.

However, an appeal from a judgment of conviction is not a matter of absolute right independent of constitutional or statutory provisions allowing such appeal. It is wholly within the discretion of the state to allow or not to allow such a review, and it may be granted on such terms and conditions as to the Legislature seems proper. State v. Edwards, 157 Ohio St., 175, 105 N. E. (2d), 259; Luff v. State, 117 Ohio St., 102, 157 N. E., 388; Wagner v. State, 42 Ohio St., 537.

Section 13459-1, General • Code, provides that in criminal cases a judgment or final order of a court or officer inferior to the Court of Appeals may be reviewed in that court. Section 13459-4, General Code, provides that such appeal, unless otherwise provided, may be filed within thirty days after sentence and judgment. Ordinarily, of course, the appeal is taken upon the journalization of the sentence.

State v. Clark, 61 Ohio App., 156, 22 N. E. (2d), 458, holds that appeal in criminal cases does not lie from final orders but from judgments only, and that orders overruling a defendant’s motions for directed verdict and judgment in his favor are not “judgments” within the meaning of Section 6, Article IV of the Constitution. The opinion recognizes that in civil cases the overruling of motions for judgment notwithstanding a verdict and to direct the jury to return a verdict for a defendant are final orders, but states:

“We have not found any cases in which a similar holding has been made as to criminal cases but on the contrary have found that it has always been the rule in this state that error proceedings do not lie in a criminal case before final judgment in the case. Inskeep v. State, 35 Ohio St., 482; Kinsley v. State, 3 Ohio St., 508; Cochrane v. State, 30 Ohio St., 61. And the various criminal codes of this state, from the beginning, have never provided otherwise.”

The court then follows the reasoning in the Chandler case and holds that since the remedial procedure in effect prior to 1912 did not embrace the review of final orders before final judgment and sentence, orders of the character from which the appeal was taken do not constitute “judgments.”

The Clark case has been followed and approved in State v. Minniear, 60 Ohio Law Abs., 417, 101 N. E. (2d), 786, holding that an order overruling a motion for a new trial and also overruling a motion for judgment is not a final order in a criminal case. Cf. State v. Feeser, 27 Ohio Law Abs., 306.

In State v. Norman, 80 Ohio App., 510, 77 N. E. (2d), 76, the court holds that an order sustaining a demurrer to a plea of former jeopardy is not a judgment or final order, citing Whitelock v. State, 21 Ohio Law Abs., 393 (Appeal dismissed, State v. Whitelock, 131 Ohio St., 332, 2 N. E. [2d], 777), and State v. Smith, 135 Ohio St., 292, 20 N. E. (2d), 718, also relating to interlocutory orders.

Although the General Assembly may not enlarge the jurisdiction of the Court of Appeals, it may nevertheless enact legislation which affects substantial rights such as, for example, the Mental Offenders Act. Sections 13451-19 to 13451-23, General Code. Under that act, after conviction and before sentence, the trial court must refer for examination all persons convicted of certain offenses. Section 13451-20, in specific terms, provides that an order of indefinite commitment shall constitute a final order; that the provisions of law relating to motions for new trial, bail and appeal on questions of law shall be applicable to such cases; and that any finding under the act that any person is mentally ill, a mentally deficient offender, or a psychopathic offender shall constitute a final order. If this provision should be construed to include orders interlocutory in character, it would be violative of the Constitution.

The order of reference made after conviction and before sentence is incident to the final imposition of sentence and is an indirect affirmance and recognition of the conviction. It is a part and parcel of the final sentence and in effect is a preliminary sentence. The order of commitment deprives the defendant of his liberty in the same .manner, if not to the extent, as in the case of final sentence and judgment. The order is a judgment having the attributes of a sentence. If the defendant was erroneously tried and convicted, he is entitled to a new trial or possibly a discharge. As revealed in State v. Johannsen (unreported), this day decided, unless the defendant can prevail upon the trial judge to withhold ruling upon his motion for new trial until after his return from Lima, his right to appeal is lost, since he must file his bill of exceptions within thirty days after the motion for new trial is overruled.

Many years ago, in Dobbins v. State, 14 Ohio St., 493, 503, Judge Ranney said:

“How far, and in what cases, the orders and judgments of an inferior court may be reviewed * * * must depend upon the particular organization of each judicial system, and the statutory powers conferred upon the appellate tribunals to entertain such a proceeding. In the judicial system of the United States, no writ of error in criminal cases has yet been provided; and this may be the case in some of the states. But in this state, it is so emphatically otherwise, that we are not only bound to review every order and judgment of the court, which may have affected injuriously the legal rights of the accused, but also the facts, whether found by the court or the jury, upon which such orders or judgments are founded. ’ ’

Only one similar case has come to our attention. In State v. McPherson, 151 Ohio St., 275, 85 N. E. (2d), 295, it appears that an appeal was taken from the order of commitment challenging the constitutionality of the act. Pending the appeal, the defendant submitted to the examination and the question of the commitment became moot and the appeal was dismissed. An examination of the record in that case reveals that the defendant was convicted of sodomy and after the verdict filed motions for arrest of judgment and for a new trial, neither of which motions were acted upon. Journal entry of the verdict was signed by the trial judge, in which entry the defendant was released on bond pending further proceedings. Shortly thereafter, by journal entry, the reference for examination was made. In addition to challenging the constitutionality of the act, the defendant assigned numerous errors occurring at the trial. In its únreported opinion, the court confined its discussion to the constitutional question, and after sustaining the act merely concluded that the failure of the trial court to pass on the motions was not prejudicial error, and that having examined all other claimed errors, found same nonprejudicial. The finality of the order was not raised or considered in the Court of Appeals or the Supreme Court, notwithstanding the fact that the state’s motion to dismiss the appeal as of right was granted and defendant’s motion for leave to appeal was allowed. •If the commitment was not a judgment or final order, the appeal would have been dismissed, sua sponte, on that ground rather than as a moot question.

In view of these considerations, we conclude that the order of commitment was a judgment or final order as those terms are used in Section 13459-1, General Code, and the Constitution; that the order constituted a sentence and judgment within the purview of Section 13459-4, General Code; and that the motion to dismiss the appeal should be overruled.

Proceeding to consider the error assigned upon appeal, we find that in the charge the court, pursuant to the mandate of the statute, read the definition of reasonable doubt and then proceeded to further define the term. In concluding his charge on the subject, he stated, “if you are not so fully satisfied but find there are only strong probabilities of guilt, your only safe course is to acquit,” instead of telling the jury that in such event it was its bounden duty to acquit the defendant. In as much as the Legislature has defined reasonable doubt and in no uncertain terms requires the court to give such definition to the jury, no purpose is to be gained by the court endeavoring to amplify or re-emphasize the definition. Since the quoted language is somewhat contradictory of the statutory definition, it is error prejudicial to the defendant.

The defendant was charged specifically with indecent exposure and felonious assault, which is the statutory definition of the offense of indecent exposure. The statute does refer to taking indecent and improper liberties with the person without intending to commit rape, but there was no charge that defendant took indecent and improper liberties with the person of the complaining witness, and there was no evidence whatsoever to support such charge. However, the court proceeded to say:

“Now what constitutes indecent and improper liberties? It is probably impossible for me to make this much plainer than these words imply. Improper liberties, indecent exposure, those expressions are such as in the common sense of society appear to be just what they say, indecent and improper. These are things that would shock the moral sense of a properly constituted person and be repulsive to the moral sense of the average citizen.

“Now, there is no particular definition given by this law of what constitutes this crime. It is all up to your common sense as members of this community as to what is meant by indecent propriety or morality, or, we might say the standard which most people who live here entertain, so you apply that from your own experiences and then determine from your experience as citizens whether this conduct falls within that definition.”

Under subdivision 7 of Section 13442-8, General Code, it is the duty of the court to separately and definitely state to the jury the issues it is to try, accompanied by such instructions as to each issue as the nature of the case may require. Harrison v. State, 112 Ohio St., 429, 457, 147 N. E., 650, affirmed, 270 U. S., 632, 70 L. Ed., 771, 46 S. Ct., 350. The injection of this extraneous issue into the charge constituted an error of commission and was prejudicial to the defendant. Furthermore, in. the event the court undertakes to comment upon the subject, it is his duty to define the term and not leave the matter for the jurors to determine from their own experiences and personal ideas of morality. The only point in saying anything is to apprise the jury of the legal meaning of the term. The error is not saved by Section 13449-5, General Code. It therefore affirmatively appears that the accused was prejudiced by the misdirection of the jury.

• The order committing the defendant to the Lima State Hospital is therefore reversed, and the cause is remanded to the Court of Common Pleas for a new trial.

Judgment reversed.

Conn and Savord, JJ., concur.