text:
    DEVISE OF PROPERTY JOINTLY BY HUSBAND AND WIFE.
    Court of Appeals for Lucas County.
    Joshua Ballard et al v. Ida Ballard et al.
    Decided, October 6, 1916.

      'Wills — Joint Testament by Husband.and Wife — Not a Compact — But a Legal Disposition of Property Held in Common, When.

    Tenants in common of real estate may dispose df the same by uniting in a single will, not in the nature of a compact, and may by the .same instrument dispose of their personal property, there being no provision for a legacy that would have to be paid from a fund to be derived from the property of both without designating the proportion in which such legacy should be paid from the property of each testator, and when the intention of the testators can be carried into effect without practical difficulty and without confusion of the properties of each testator.

      J. D. Finch and Homer Metzgar, for plaintiffs in error.

      Lester Wilson and Garver <& Garver, contra.
   Chittenden, J.

Error to the court of common pleas.

This action was begun by the plaintiffs in error in the court of common pleas to contest the validity of the last will and testament of Jerome Ballard. At the conclusion of all the evidence both the plaintiffs and the defendants made a motion to direct a verdict in their favor respectively. Upon consideration of this motion the trial court directed the jury to return a verdict finding the paper writing to be the valid last will and testament of Jerome Ballard. The will is as follows:

“WILL.
“Last Will and Testament.
‘1 In the name of the Beloved Father of all: Amen.
“I, Jerome & Loretta County of Sandusky, and State of Ohio, being about 64 & 65 years of age, and being of sound and disposing mind and memory, do make, publish and declare this my last will and testament, hereby revoking and making null and void all other last wills and testaments by me made heretofore.
“First. My will is, that all my just debts and funeral expenses shall be paid out of my estate, as soon after my decease as shall be found convenient.
“Second. I give, devise and bequeath to
“I, Jerome & Loretta Ballard have both agreed that the one that lives the longest shall have the entire property, both farm & personal property & everything on the farm, and about the house to keep or dispose of in any way. Pie or she shall see fit during their lifetime, then at our decease everything in the house shall go to Ida Ballard all furniture, silver ware, beds, bedding, books, pictures & in fact everything in the house is hers, Ida shall have Jennie Ballards wearing apparel, jewelry & other things give something to each of her 3 sisters, Nettie, 'Cora and Mirtie Ballard, there will be sufficient means & Ida shall settle all expenses, all chattels or other loose property can be sold for that purpose, the silver watch shall be brother Joshua Ballards, the gold one shall go to Win Ballard, the 18 acres of land more or less on west side of road unless sold previous, shall go to Charles Calkins of Albert Lea, Minnesota and to his heirs after him, the 60 acres situated in York township shall be Ida Ballards wholly provided it is in our possession at the time of our death.
‘ ‘ In testimony whereof, we have set our hand to this our last will and testament at York, this 1st day of March, in the year of our Lord One thousand eight hundred and ninety-nine.
“his
“Jerome X Ballard Loretta Ballard “mark
“The foregoing «instrument was signed by the said Jerome and Loretta Ballard in our presence and by published and declared as and for onr last will and testament and at their request, and in our presence, and in the presence of each other, we hereunto subscribe our names as attesting witnesses at York, this 1st day of March, A. D. 1899.
“B. F. Rogers
“resides at Clyde, Ohio.
‘1 Charles Everett
“resides at York Township, 0.”

Counsel for plaintiffs in error contend that this paper writing can not be construed to be a valid last will and testament under the decision announced by the Supreme Court of this state in the case of Walker v. Walker, 14 O. S., 157. It is claimed that the will is joint both in form and substance, and the result of a compact between the signers thereof, and that such a will is unknown to the testamentary law of this state as declared in the case cited.

The defendants in error argue that the ease of Walker v. Walker has no application to this case and is not an authority against the validity of the will here in question. They assert that the limitation placed upon the case of Walker v. Walker by the case of Betts v. Harper, 39 O. S., 639, is such as to completely eliminate the case of Walker v. Walker as an authority to be considered in this case. The Supreme Court was not unanimous in the decision reached in the ease of Walker v. Walker, and the opinion in that case shows that the court undertook to limit the decision within very narrow boundaries. While the court in the later case of Betts v. Harper did not undertake to overrule the earlier decision, they called attention to the limitations placed by the court itself upon the questions decided and declined to extend the scope of the case in any way.

It is urged upon this court that if it should find that the decision in Walker v. Walker does not announce a corret conclusion and is found to be in conflict with the later decisions of courts of last resort upon this subject, it should not feel bound by that decision. Although this court has final jurisdiction in a large class of cases it has at all times declined to overrule decisions of the Supreme Court of this state, but, on the contrary has felt bound to follow such decisions so far as they govern eases under consideration. Any case "that would call for the overruling of a decision of the -Supreme Court would undoubtedly be of such interest as to cause the Supreme Court to take jurisdiction thereof in which tribunal former decisions of that court might properly be overruled.

The case at bar is one of unusual interest and has been skillfully argued by counsel for plaintiffs and defendants, both orally and in briefs. The questions presented which at first appeared to be complex become quite clear upon á careful examination of the will itself.

It is conceded that the will was properly executed before witnesses and that the parties at the time were competent to execute a will and were not under any restraint or undue influence. The evidence introduced on the trial was principally directed toward showing that Loretta Ballard at the time of the making of the will was possessed of property. It appears that at the time of their marriage some time before the year 1860, each had by inheritance property of approximately the value of two thousand dollars. That thereafter real estate was purchased, the title to which was taken in the name of Jerome Ballard. It does not appear just how the property was paid for, nor do we think this is important in the view we take .of the ease. Thereafter real estate was sold and purchased, the title being taken in the name of Jerome Ballard. Later through the interposition of a third party this real estate, or at least a considerable portion thereof, was transferred to Loretta Ballard, and about a year before the making of the will Loretta Ballard deeded the property to her husband, Jerome Ballard, and at the time of her death there was no real estate the title to which was in her name.

There was some evidence tending to show that at the time of her death she owned a few pieces of household furniture and perhaps some small amount of money. It is claimed that it is shown from the evidence that Mrs. Ballard had some beneficial interest in this real estate might have been asserted by her. Such interest, however, could not have been greater than a tenancy in common and it was decided by the Supreme Court in Betts v. Harper, supra, that tenants in common of real estate might, by a will, executed jointly, devise such property. It was further held in that case that if in addition to the ownership in common of real estate each was possessed of personal property it might all be devised by a single instrument where the bequests are severable and the instrument is not in the nature of a compact but is in effect the will of each, and that such will might be offered for probate after the death of all those executing it, as the will of eacii and all such persons.

This will first undertakes to give to the survivor of the testators all the property, to be used as the survivor shall see fit during his or her lifetime. This provision of the will is expressly excluded from the decision in Walker v. Walker by the language of the opinion in that ease, and the validity of such a will is sustained by substantially all the authorities. It then provides that upon the death of the survivor everything in the house shall go to Ida Ballard and specifies many items general in character, concluding with the words, “In fact everything in the house is hers,” meaning evidently that everything then became hers by virtue of the will. This legacy is a valid orovision under the doctrine announced in Betts v. Harper. It is then provided that Ida shall have all the wearing apparel, jewelry and other things of Jennie Ballard, who was the deceased daughter of the testators. This provision is clearly identical in character with the general provision that Ida shall have everything in the house.

Attached to this last provision is a direction that she shall give something to each of her three sisters. This provision is quite indefinite. It is not clear whether it was intended that they should each have something that had belonged to Jennie Ballard, probably as a keepsake, or whether this provision is to be satisfied by the giving to her sisters of anything that comes to her by virtue of the will. In any event there is nothing in this condition which in any way affects the validity of the instrument.

Then follows a recital that there is sufficient means to settle the expenses of the estate and the obligation is devolved upon Ida to settle all these expenses. The will provides that in so doing she may sell all or any of the personal property for that purpose. It is true that the will does not specify whether the chattels that may be sold shall be those belonging to Loretta or Jerome, bnt inasmuch as all the personal property not specifically bequeathed goes to Ida Ballard, it is quite immaterial to which one of the testators the property so sold belonged. A gold watch is specifically devised to one brother and a silver watch to another. Then follows a devise of eighteen acres of land to Charles Calkins and sixty acres of land to Ida Ballard. It would seem to be quite immaterial in the light of the decisions above mentioned, whether this real estate was owned by Jerome Ballard individually or whether he and his wife were tenants in common. If they were tenants in common they could legally devise it by a single instrument, and if it was the sole property of Jerome Ballard there would be no interest of the wife that could be affected by it.

It is most earnestly argued by counsel for plaintiffs in error this this will bears evidence of being the result of an argument and that the instrument thus being in the nature of a compact it is void as a will. One of the characteristics of a will is its revocability and it has been held that anything which destroys this feature of revocability destroys the instrument as a will. We are unable to find in this instrument anything which makes it invalid on this account. The instrument sets forth in terms that the parties have agreed, that the property shall be disposed of as afterwards set out in the instrument. The express words give it no greater force or effect than it would have without those words. The instrument itself must be looked to to see whether it does in fact contain such an agreement as would prevent the revocation of the instrument by either. We find no more evidence of an agreement in this instrument than was apparent in the will under consideration in Betts v. Harper. It may well be said that the two sisters Harper had agreed that their property should be disposed of in accordance with the terms of their will. The court evidently did not take that view. It was apparent that the parties to the instrument were in accord upon the- disposition of the property of each as well as the disposition of the property owned in common. And so in this case it is apparent that Mr. and Mrs. Ballard had no difference of opinion as to how the property in question should be devised. Nowhere in the will is there any provision for a legacy that would have to be paid out of a fund to be derived from the property of both without designating the proportion in which such legacy should be paid from the property of each of the testators.

This will, while most crudely drawn, very clearly expresses the intention of the testators and that intention can be carried into effect without any confusion of the properties of each if they both owned property, and there is no practical difficulty in giving effect to their intention. One of the important incidents to the ownership of property is the right to devise the same by will and wherever possible courts should maintain this right.

We think that an analysis of this paper writing discloses a will that is not within the case precisely decided in Walker v. Walker. There is nothing about the will which makes it impossible or even difficult to construe or carry out. The conclusion we have reached we believe not to be in conflict with Walker v. Walker and to be entirely in accord with the case of Betts v. Harper and entirely in accord with the conclusions of modern text writers upon the subject and the later decisions in this country and England. We think that every reason obtains why the principle decided in Walker v. Walker should not be extended beyond the exact question there decided upon facts which would not warrant any different decision than was arrived at in that ease.

The judgment of the court of common pleas will be affirmed.

Richards, J., and ICinkade, J., concur.


source: Caselaw Access Project

author: Jones (E. H.), P. J. Gorman, J.,

license: Public Domain

text:
    ACTION BY A RELATIVE FOR SERVICES RENDERED TO A DECEDENT.
    Court of Appeals for Hamilton County.
    Patrick Leen, as Administrator of the Estate of Maurice H. Leen, Deceased, v. Jane Leen.

    Decided, June 12, 1916.

      Contracts — Payments Made by a Decedent — To a Relative for Care and Nursing — Not Necessarily Payments in Full — Estoppel Does Not Operate Against a Further Demand — Rule in Hinkle v. Sage Not Applicable to Widow of a Nephew Not a Member of Decedent’s Household.

    1. In an action against the estate of a decedent for services rendered, the compulsory silence of the plaintiff touching the defense that payments made to plaintiff by the decedent were payments in full, creates no inference that plaintiff agreed to accept the payments made as payments in full, or that no agreement was entered into between them as to further sums being due in view of the greatly increased amount of work which had been thrown upon her, and in the absence of any word or circumstance to the contrary, estoppel does not operate against a further demand in settlement.
    2. The rule laid down in Hinkle v. Sage, requiring that such a- claim be supported by an express contract, has no application where the plaintiff is the widow of a nephew of the decedent and did not belong to the same household.

      Anthony B. Dunlap, for plaintiff in error.

      David Davis and Conway, Mueller & Conway, contra.

      Motion for an order directing' the Court of Appeals to certify its record in this case overruled by the. Supreme Court November 21, 1916.

   Jones (E. H.), P. J.

The defendant in error, Jane Leen, brought her action in the common pleas court against Patrick Leen, as administrator of the estate of Maurice H. Leen, deceased, seeking to recover compensation at the rate of $24 per week for services rendered to the decedent, Maurice IT. Leen. In her itemized statement she charges $20 per week for nursing and care, and $4 per week for looking after, the business interests of the decedent, viz., in paying taxes, insuring the property, looking after repairs, paying bills, banking money, etc.

An answer was filed in the court below denying the allegations of the petition, and thereupon the cause came on for trial before the court and jury, which resulted in a verdict and judgment for the plaintiff below in the sum of $1,613.02.

We are asked to reverse this judgment on the grounds, first, that it is not supported by sufficient evidence, and, second, because the court erred in its charge to the jury.

After carefully considering these assignments of error, the majority of the court are of the opinion that neither of them is sustained by the record. It appears that the charge of the court was a full and fair exposition of the law as touching the issues made by the pleadings.

The complaint of the plaintiff in error that the verdict of the jury is not sustained by sufficient evidence is based upon the claim that the evidence shows that Mrs. Leen, for several years prior to the death of the intestate and up to a time within a year or so of his death, had been rendering him services In cooking, cleaning and to a limited extent nursing for him, at the rate of $3 per week. The homes of the parties involved were near each other, being separated by only one narrow lot. During the period of time just referred to, Mrs. Leen remained at home for the most part and looked after her own household. She discontinued this work for Mr. Leen for a period of several weeks, whereupon he came over to her house and told her that he could not get along without her assistance, and asked her if she would not again help him. To this she assented, but from this time on the evidence shows her work was much more arduous and exacting, requiring a great deal more of her time. Mr. Leen became very much afflicted and suffered the amputation of one of his legs, by reason of which she was compelled to remain with him in his house almost continuously, day and night. There is also evidence tending to show that she performed the services in connection with his business affairs, upon which she, in her petition, places the value of $4 per week. She received during this time the sum of $3 per week. There is no evidence, however, to show that this was paid to her in full for her services'. The malady from which Mr. Leen was suffering was progressive; his condition was constantly becoming worse, and it is only fair to presume in explanation of the lack of definite understanding as to compensation that the work was becoming more and more irksome, and thus more valuable; and, also, that Mr. Leen was in no condition physically to talk with her over business matters, especially matters pertaining to his own personal care and comfort.

The action being one against the executor of a deceased person, Mrs. Leen, the plaintiff, was by statute disqualified as a witness, so there can be no inference that nothing was said between her and her patient, Mr. Leen, during his long illness about the inadequacy of the compensation he was paying her. She may have protested and remonstrated with him every time he handed her the pittance of $3 a week, and unless it occurred in the presence of a third party competent to testify, she is helpless to prove such conversations. Or, it may be that it was distinctly agreed between the parties that the sum paid to her was only on account, and represented only a part of what she was actually to receive. It seems, therefore, that any conclusion reached in this ease based upon the theory that she never objected to the $3 per week or complained as to the inadequacy thereof, or any conclusion that the mere fact that weekly payments were made shows that such payments were in full, or that by receiving these weekly payments regularly she is now estopped, can only be based upon her compulsory silence, and is unsupported -by any word or circumstance appearing in the record.

In view of the dissenting opinion which follows, we must add that in our opinion the rule laid down in the case of Hinkle v. Sage, 67 O. S., 256, relating to claims for services tú a deceased person by a relative or member of his household, can not apply here. Prior to her employment with Mr. Leen, the plaintiff had never lived in the house with him, nor did she so live after her employment. There was no blood relationship between the parties, and the only relationship that existed at this time was that Mbs. Leen was the widow of a deceased nephew of Maurice H. Leen. Neither the ease above referred to nor any of the other numerous cases in which the same principle is discussed has aught to do with any condition or family relationship such as has been shown to have existed between these parties. "We know of no case in Ohio, or for that matter in any other state, where it has been held that one not related to a person by blood and not in any sense a member of his family or household, is barred from recovering for services rendered unless an express contract is shown. That the rule laid down in Hinkle v. Sage and later cases is a wholesome one will not be denied. Neither can' it be denied that this rule has no application whatever to the facts in this case.

In view of the evidence in the record as to the labors and responsibilities which rested upon Mrs. Leen, there certainly can be no presumption that the $3 was paid to her in full for all her services, and there was a lack of direct evidence to show that such was the ease.

The jury was therefore justified under the evidence in awarding her compensation in addition to the $3 per week, and the amount was a matter entirely within the province of the jury and for its determination. In the absence of any indication of passion or prejudice, the juryhaving been made fully acquainted with the nature of the services which she rendered, the judgment will be affirmed.

Jones (Oliver B.), J., concurs; Gorman, J., dissents.

Gorman, J.,

dissenting.

The evidence in this case discloses that during the entire time ■that the -plaintiff rendered' the services to the defendant’s' intéstate she was paid each week the sum of $3 and received the same as her compensation for the services rendered. She made no complaint or objection to the amount paid her. She never notified or apprised the decedent that she was dissatisfied or expected to be paid more for her services. For a long time prior to her last employment she ,was also paid the sum of $3 per week. Under these circumstances it appears to me that she is now estopped from claiming that her services are worth more than $3 per week. “He who will not speak when he should, should not be heard to speak when he would.” The decedent’s mouth is closed in death, and it appears to me that the acceptance^ the amount paid her each week estops her from claiming that’she was entitled to more, after the death of Mr. Leen.

The cupidity and avarice of relatives of deceased persons so, frequently tempt them to make claims against their estates, especially when they are dissatisfied with some provision made for them by the deceased, that the courts should frown upon all efforts to raid the estates of deceased persons.

I am fully convinced that the plaintiff in this case had no intention to make a charge of more than $3 per week for her services until after the death of Mr. Leen and that this claim upon her part was an afterthought. It appears to me that the verdict was manifestly against the weight of the evidence and that the defendant proved conclusively that the services rendered by the plaintiff to the decedent were fully paid for during the lifetime of the decedent.

For these reasons I am constrained to say that, the judgment should be reversed.


author: Shields, J.

text:
    RIGHTS OF SURETIES ON A BOND SECURING PAYMENT OF A NOTE.
    Court of Appeals for Licking County.
    J. W. Scott et al v. Adam Emswiler.

    Decided, March Term, 1916.

      Joinder of Action on a Note With Action on a Bond Securing Payment of- the Note — Error in Rejecting Evidence of- Violation of the Terms of the Bond.

    1. The rights of sureties on a bond, executed to secure payment of a promissory note, are not prejudiced by uniting an action on the bond with-the action for recovery on the note.
    2. In view of the express stipulation of the bond that the proceeds of the said loan were to be used by the defendant in his business, one-half of the profits derived therefrom to be retained by the defendant as his compensation, and the denial of the answer that this agreement was carried out, it was error to refuse to permit the introduction of testimony as to the alleged violation of the terms of the bond.

      8. L. James, for plaintiff in error.

      Flory & Flory, contra.

      Motion to require the Court of Appeals to certify its record in this case overruled by the Supreme Court November 28, 1916.

   Shields, J.

This cause is in this court by petition in error seeking to reverse the judgment of the court of common pleas upon numerous grounds of error alleged therein.

The amended petition of the plaintiff in the court below is founded upon a promissory note executed and delivered by the said J. W. Scott, one of the defendants, to the plaintiff on May 11, 1908, payable on demand, for $300, with interest, containing a power of attorney to confess judgment, on which various payments of interest are endorsed. Said petition further alleges:

“That before and at the time said note was given, said J. W. Scott was engaged in the business of loaning money at interest in the city of Newark, Licking county, Ohio. In order to secure the amount due upon, and evidenced by, said note, the said J. W. Scott, as principal, and the defendants, C. D. O’Hara and Phil. B. Smythe, both of Newark, Ohio, as sureties, executed and delivered to this plaintiff their bond or written obligation by which they were held and firmly bound unto the said plaintiff in the sum of $300, for the payment of which they bound themselves. The condition of said bond was, in substance: "Whereas the said Adam Emswiler has deposited with the said J. W. Scott the sum of $300, in money, in trust, for the purposes of investing the same, i. e., loaning the same in connection with the conduct of the business now managed by the said J. W. Scott, located at 29% South Third street in the city of Newark, Ohio, it being agreed between the said parties that the said' J. W. Scott shall loan said $300 for the said Adam Emswiler, and to pay to said Adam Emswiler one-half of the profits derived from said $300, the other half of said profits to be retained by said Scott as and for his compensation, the said profits to be deter-upon the basis that said $300 bears to the total amount of capital invested in said business. The said $300 is to be returned to said Emswiler upon demand, or as soon thereafter as the same can be collected from said business at thé option of said Scott.
“Now if the said Scott shall faithfully perform all the conditions by him to be performed as aforesaid, then this obligation to be void, otherwise to be and remain in full force and effect.”

To this amended petition a joint amended answer of the defendants, C. D. O’Hara and Phil. B. Smythe, is filed, in which they say:

“They deny that in order to secure the amount due upon, and evidenced by, the note set up in plaintiff’s, petition, as sureties for the said Scott, executed and delivered to plaintiff their bond or written obligation by which they were held and firmly bound unto plaintiff in the sum of $300 or any other sum, for the payment of which said defendants bound themselves.
“They deny that they are indebted to plaintiff upon or by reason of said bond, or otherwise, in the sum of $300, or any other sum.
“Further answering these defendants say that plaintiff and said "Scott were partners in the business of loaning said money, and in the business mentioned in said petition. These defendants say that said plaintiff has never made demand upon said Scott for the payment of said sum of money, or any part thereof, according to the terms of said written obligation, or bond, and they deny that said Scott has ever made default in any of the terms or conditions of the same.
“Said defendants deny each and every allegation of said petition. ’ ’

A separate amended answer to said amended petition is also filed by the defendant, J. W. Scott, in which, after admitting the execution of said note and bond, he avers that no demand was ever made upon him by the plaintiff as contemplated by the express terms of said bond; that he has paid under said option upon said $300 all the moneys collected by him from said business of loaning money and which is the sum total owing by him to plaintiff under the terms of said bond, and he denies all the allegations of the plaintiff’s amended petition, except what is expressly admitted in said amended answer.

Separate replies to the joint amended answer of C. D. O’Hara and Phil. B. Smythe and to the separate amended answer of the said J. W. Scott are filed by the plaintiff, denying all matters stated therein inconsistent with the allegations of said amended petition.

The case was submitted to a jury, resulting in a verdict for the plaintiff. A motion for a new trial being overruled, judgment was entered upon said verdict and, as stated, error proceedings are prosecuted to this court for a reversal of said judgment.

The history of this case leading up to the execution of the note and bond mentioned in the pleadings fully appears in the evidence contained in the bill of exceptions, which we have read with some degree of care with reference to the hi aims of the respective parties as made in their respective pleadings.

Considering the manifest object in the execution and delivery of said bond by the plaintiffs in error to the defendant in error and the subsequent execution of said note by said Scott, one of the plaintiffs in error, to the defendant in error, and uniting both in one and the same cause of action, has been the subject of no little discussion by the court, but under the rule that the rights of the sureties on said bond were not prejudiced thereby, we hold that the action of the court below in overruling the motion and demurrer interposed to the amended petition was not erroneous.

It is averred in said amended petition that while said Scott was to invest or loan said $300 in his business and account to the defendant in error for one-half of the profits derived therefrom,. the other half to be retained by said Scott as his compensation, he did not invest or loan the same or any part thereof in his business, according to the conditions of said bond. This averment in said amended petition is met by a denial in both the joint amended answer of the defendants, C. D. O’Hara and Phil. B. Smythe, and in the separate amended answer of said J. W. Scott.

On pages 53 and 54 of the record we find that when the said Scott was testifying as a witness for the defense he was interrogated and answered as follows:

£<Q. What did you do with that money? A. I put it in the safe.
“Q. What did you do with it after that? A. It was too late to go to the bank. It was after three o’clock, and the next morning I deposited it in the Licking County Bank.
“ Q. Then what was done with it, if anything?
“Objected to as immaterial.
£ ‘ The Court: I do not think it is material.
“By Mr. James: Exceptions, and we offer to show that he invested it in the business.
“The court refused to permit the. defendant to so prove, to which refusal of the court counsel for defendant at the time excepted.”

•As indicated, an exception was saved to the action of the court in excluding the evidence offered and such action of the court is assigned as error.

It appears that the object in placing this money with said Scott was that he should employ it in his business, and that by the terms of said bond it is expressly stipulated that he should loan it in connection with his said business, and in said amended petition it is averred that he failed and refused to comply with said agreement and violated the terms of said bond in this respect. As a party to said action wherein a recovery is sought against him and others, any violation of the terms of the instrument sued upon, we think was proper to have been shown, and he should have been given an opportunity of not only meeting said charge by a denial of the same, if true, but by stating all the facts and circumstances relating thereto, especially as bearing upon the option to be exercised by the said Scott under the terms of said bond. Under the charge made in said amended petition and the denial of the same in said answers, we think that the evidence offered was clearly competent, and that the action of the court below in excluding the same was erroneous and prejudicially so, because said evidence so offered and rejected was vitally related to the subject-matter affecting the legal rights of each of the defendants in said suit. As stated, the underlying agreement in the bond was that the money was to be employed in the business of the defendant in error, and that the latter was to share in the profits therefrom, and to be deprived of showing that it was so employed would be to deny to the defendants the benefits of the defense made. In excluding the evidence offered we think the court below erred to the prejudice of the plaintiffs in error and such error affords sufficient ground for the reversal of said judgment.

It was also argued that the court below erred in its instructions to the jury. As already shown said bond provides that “the said $300 is to be returned to said Emswiler upon demand, or as soon thereafter as the same can be collected from said business at the option of said Scott.” As we interpret this clause of said bond, it is to the .effect that said Scott was to return said sum of money to defendant in error upon demand, or as soon thereafter as the same could be collected from said loaning business, as the said Scott might elect. The meaning of the bond is ascertainable from a history of the case. It is aided by a consideration of the object for which and the circumstances under which it was given. Evidently it was given to protect the defendant in error against the loss of his money, assuming that it was a loan, and it is equally evident that said sum of money was to be loaned out, hence it is not unnatural for the bond to recite and provide that said money shall be payable on demand, or if loaned out apd not subject to such demand, that he may take steps to collect it, and these methods of payment were at the option of said Scott. True, the sureties on this bond obligated themselves to pay the sum named therein, but their obligation is to be determined by the conditions expressed therein. Their liability rests upon the letter of the bond. They make ho absolute promise, or give any guarantee of the repayment of this sum of money to the defendant in error, unless said Scott makes default in the particulars named therein. In instructing the jury upon this branch of the ease and referring to what the court below instructed them was a reasonable time after demand made to return this money to the defendant in error, the plaintiffs in error claim that such instruction was misleading and, therefore, erroneous. They claim that no such demand was made for this money as is contemplated by the provisions of said bond, but that if a demand was made, they further claim that said instructions to the jury were not warranted because, under the terms of said bond, the said Scott had the option to collect said money if loaned out, and that there is nothing affirmatively appearing in the record that he did not exercise such option. While we think the jury should have been more fully instructed upon this feature of the bond, we are not prepared to say that we deem this instruction sufficient ground for the reversal of this judgment, standing alone.

We have examined the other assignments of error in said petition in error and find no prejudicial error therein, but for the error in excluding certain evidence hereinbefore referred to the judgment of the court of common pleas will be reversed and said cause will be remanded to said court for a new trial;

Powell, J., and Houck, J., concur.


author: Jones (Oliver B.), J.

text:
    LEGALITY OF THE ESTABLISHMENT OF A COUNTY ROAD.
    Court of Appeals for Hamilton County.
    The Harkness & Cowing Company et al v. The Village of St. Bernard et al; and William G. Roberts, Administrator, etc., v. Same.
    Decided, February, 1917.

      Jurisdiction of County Commissioners to Establish a County Road, —■.Purpose of the Statute Requiring Notice to Abutting Owners— Estoppel Against Property Owners Resisting Payment of Assessment for Improvement of Road.

    1. The purpose of the notice to abutting owners, required by Sections 6872 and 6873, is to give opportunity for claiming compensation for land taken, and while failure to give such notice might not prevent a property owner from thereafter claiming compensation, such failure does not deprive the county commissioners of authority to act and in nowise affects the validity of the proceedings to establish the road.
    2. The recording of a plat of such a road and its recognition by the county commissioners as a county thoroughfare has the effect of establishing it as a public street upon annexation to a village of the territory through which it passes; and an abutting owner who has made deeds and leasés containing descriptions referring to the road and recognizing it as a public highway is estopped from thereafter resisting payment of an assessment for its improvement on the ground that it is not a dedicated highway or was never legally established.

      Albert H. Morrill and James JE. Robinson, for plaintiffs.

      Samuel B. Hammel and John R. Quane, contra.
   Jones (Oliver B.), J.

These two cases were heard together on appeal from the court of insolvency, as they involve the same issues.

Two questions are involved in the cases: first, as to whether Murray road, within the village of St. Bernard, running from Carthage avenue to the Miami canal, was a public highway at the time the improvement was made; and, second, whether the several tracts of land assessed for this improvement of Murray road were benefitted by the improvement in an amount equal to the amount assessed against it.

A great deal of interesting evidence was offered in regard to the original use of this road. It was shown that as a private road or lane it was opened and has been used for at least seventy-five years, and that during the latter part of that time it was used by the general public more or less in passing between Carthage avenue and the canal bridge. But it is not necessary in this proceeding to determine the character of the road prior to the year 1890. At that time, upon a petition filed by James M. Murray and others under proceedings for the laying out of a county road as provided by law, the county commissioners took certain proceedings and laid out a county road over the line of Murray road, as later improved, and extending from Carthage avenue clear to Paddack road. A record of these road proceedings, from the county records, has been produced in evidence. These proceedings show that notices were given in accordance with R. S., 4641 (G-. C., 6865-6866); 'and the regularity of these notices was found by the county commissioners and the viewers appointed as provided by R. S., 4642 (G. C., 6867), and the viewers and county surveyor proceeded to lay out the road.

It is objected that this record fails to show that notices were given under R. S., 4645 (G. C., 6872), to the owners of land on the north and south sides of this road between the canal and Carthage avenue, although the record does show that notices were given to property owners for that part between the canal and Paddack road. The failure to give this notice is .the only objection made by the plaintiffs as to the regularity of these road proceedings, and they contend because of the failure of the record to show such notice, that such part of the road never became a public county road.

The omission to give the notice required by R. S., 4645, would •not render the proceedings for the laying out of the county road invalid. The notice required by that section is for the purpose of-furnishing an opportunity to the owner of land taken for the opening of a county road to claim compensation. If such land owner was not properly notified, his right to compensation might not have been cut off by the proceedings. Whether or not he was duly compensated is not material to this case, but the fact that no compensation was claimed or allowed rather goes to show that that part of the road had already become by use a public road. But whether so or not, the notice required by the last mentioned section is not jurisdictional in its nature. Beebe v. Scheidt, 13 O. S., 406; Hasler v. Hitler, 11 Bull., 246 (Pickaway Co. Dist. Ct.).

By these proceedings Murray road became a county road, was regularly platted and recorded as such in the county road records, and was so recognized by the county commission in March, 1892, in their appointment of a bridge tender for the bridge at the canal. It was indicated as a county road on the annexation plat when the tract in which it was located was annexed to the village of St. Bernard, and was so recorded in the recorder’s office. And as such county road it became a public street of the village of St. Bernard by such annexation. Steubenville v. King, 23 O. S., 610.

But, outside of the proceedings of the county commissioners in laying out this highway as a county road, the action of .W. G. Roberts, trustee, and of the Ross heirs in making their deed to the Norfolk & Western Railway Co., and their plat attached thereto, which was recorded in the recorder’s office, and in the execution of subsequent deeds and leases, in which descriptions were made referring to such plat, and recognizing Murray road as a public highway, operated as a dedication of Murray road, if it was not already a public street. Especially does this appear when coupled with a recognition of its existence as a public street by the village, in putting water pipe and electric lights therein, cinder sidewalk and temporary macadam repairs thereon, and in the ordinance establishing the grade and ordering this improvement. . Cincinnati v. Leeds, 3 App. Ct., 123; Winslow v. Cincinnati, 6 N. P., 47; Wright v. Oberlin, 3 C.C.(N.S.), 342.

The Harkness & Cowing Co. and the Elmwood Castings Co. both joined in a petition for the improvement of this part of Murray road, in which it was described as a public thoroughfare, and both of these companies are therefore estopped from questioning the title of the village or its right to improve Murray road. Tone v. Columbus, 39 O. S., 281.

The court is therefore compelled to hold against the plaintiffs on the first proposition, and find that the Murray road was a public highway at the time the improvement was made.

The assessment made in this case was on the benefit plan. Murray road affords the only access as to all the tracts of land in the ease, except the one at the corner of Carthage avenue, and it can not be found under the evidence that the improvement of this road was of no benefit whatever to these tracts of land, merely because they are now used for manufacturing purposes, or are most available for such purposes.

A full consideration of all the evidence offered leads the court to believe that all these tracts have been benefited to the extent of the several amounts assessed upon thm.

The petitions in both cases must therefore be dismissed, at the costs of the plaintiffs.

Jones (E. H.), P. J., concurs; Gorman, J., not participating.


author: Jones (E. H.), J.

text:
    GUARANTY OF A HEATING SYSTEM.
    Court of Appeals for Hamilton County.
    J. M. Dawson v. Fred W. Myers.
    Decided, May 15, 1916.

      (Guaranty — Where' Covering a Heating System — Not Met by Showing Substantial Compliance Where There is a Deficiency in Heating Power.

    Under a contract for furnishing a heating system with a written guaranty as to its efficiency, the guaranty as to heating power must be met, and this is not done by showing substantial compliance with the specifications in the matter of design, material or workmanship.

      J. M. Dawson, for plaintiff in error.

      Kramer & Bettman, contra.
   Jones (E. H.), J.

The judgment below will be reversed for error in'the general charge wherein the court invoked the rule of substantial performance. This rule is applicable to building contracts where a departure from the specifications with reference to material or workmanship, etc., is the question in dispute. But we have here a contract for the furnishing of a heating system, with a written guaranty as to its efficiency. In such case the guaranty as to heating power must be met, and such requirement is not met by showing a substantial compliance with the specifications in the matter of design, material or workmanship.

It follows that the following special charge' requested by plaintiff below, and refused, should have been given:

“There being no allegation in the answer and cross-petition that the plaintiff, J. M. Dawson, waived any of the provisions of the contract between him and Myers, the guaranty of Myers that the heating system installed by him should produce seventy degrees of heat in all the rooms containing radiators when the thermometer stood at zero on the outside, heat maintained continuously, was a continuous guaranty, and if you find that there was a failure of the plant installed by Myers to maintain such heat with proper firing and attention, the defendant, Myers, can not recover on his cross-petition, and it will be^ your duty to find what damages, if any, the plaintiff sustained by the failure of Myers to furnish a system providing such heat.”

We find no other errors in the record.

Judgment reversed.

Jones (O. B.), J., and Gorman, J., concur.


text:
    EVIDENCE AND INSTRUCTIONS TO THE JURY IN A WILL CONTEST.
    Court of Appeals for Hamilton County.
    Henry Niemes et al v. Tillie Niemes and Adolph Richter, Administrator de bonis non With the Will Annexed of John Niemes, Deceased.
    Decided, February, 1917.

      Wills — Error in Using Language in Charge to Jury Not Warranted hy the Evidence — Lay Witnesses Not Competent to Testify as to Capacity of Testator to Malee a Will at the Time the Will in Issue Was Made.

    1. In charging a jury in a will case, it is error to use such words as “misrepresentation,” “deception,” “coercion,” or “threats” in the absence of evidence upon which the use of such words might fairly be based.
    2. If. is also error to permit lay witnesses, such as porters, janitors, waiters, etc., employed about the place of business of the testator to testify as to his ability, at the time the will was made, to unden stand and decide large and complicated business propositions.

      J. Louis Kohl and Peck, Shaffer & Peck, for plaintiffs in error.

      Rufus B. Smith, Cogan, Williams & Ragland, Horace A. Reeve and John J. Weitzel, contra.
   Jones (E. H.), P. J.

This court is unanimous in the opinion that the judgment of the court below should be reversed, but we are not in agreement as to the grounds upon which our judgment shall be based.

The majority of the court is of the opinion that the third and fourth grounds of reversal as designated in the separate concurring opinion are well taken. We find error in the charge and in the admission of evidence which is prejudicial and which, therefore, makes for a reversal of the judgment.

In a separate opinion our associate goes further and favors reversal not only for these reasons, but upon all the grounds contended for by plaintiffs in error.

While unwilling to say with him that the judgment below is manifestly against' the weight of the evidence or that there is no evidence of undue influence, it must be admitted that the fact that the court is thus divided upon these questions shows at least some infirmity' in the proof and that these are questions upon which the minds of men may and indeed do differ.

Such being the situation confronting the learned judge who presided at the trial, it became his duty in charging the jury to avoid a ’departure from the evidence or, rather, to confine himself to the law applicable to the facts brought out or supported' by evidence adduced during the trial. This was not done, when the court in its general charge said:

“If, however, there is a preponderance of the evidence showing * * # that said instrument was executed by John Niemes while under the undue influence of defendants, or any of them, then said instrument should be declared to be not the last will and testament of John Niemes.” # * * * * *
‘ The exercise of undue influence need not be shown by direct proof. It may be inferred from circumstances; but these circumstances must be shown by the evidence and be such as to justly lead to the .inference that undue influence was employed and the will was not the wish or intention of the testator. * * * If deceived by misrepresentations or coerced by threats or solicitation or persuasion, or even by mercenary kindness or attentions, or influenced by the constant pressure of a dominating or controlling mind which constrained him into executing a will he would not of his own inclination have made, then the jury may find that undue influence has been exerted over the mind of the testator.”

There is no evidence of misrepresentation or deception, coercion or threats. It was error to use such words in the absence of evidence upon which to base them. As to the probable effect of an unwarranted charge of this kind upon the jury' we fully agree with the following from the brief of counsel for plaintiffs in error:

“When the presiding judge thus states in detail contingencies upon which the the will may be set aside, the jury is entitled to infer that he is speaking of something, the existence of which the jury is at liberty to infer from the evidence under consideration. The jurors do not accept such a charge as an abstract lecture, on the subject of undue influence in general. On the contrary, it is supposed to be given and is accepted in the concrete, with strict application to the case in hand, and where the judge speaks of the possibility of ‘coercion, threats, misrepresentation and deceit, ’ they certainly .think they have a right to go as far as he and ‘infer from circumstances’ that some of those vicious elements produced the will in question.”

It is such a well settled principle, that courts must limit the charge to the facts which the evidence tends to establish, that we deem citation of authorities unnecessary.

We are of the opinion, also, that the court erred in permitting a number of lay witnesses to testify as to the lack of ability of the testator “to understand and decide large and complicated business propositions.” Questions of such import were asked numerous lay witnesses, and answers given, over objection by the defendants. The porters, janitors, etc., employed in and about testator’s saloon, Avere permitted to say to the jury that in their opinions Mr. Niemes could not understand and decide large and complicated business transactions.

It is claimed that our Supreme Court has decided such evidence to be admissible in Bahl v. Byal et al, 90 O. S., 129. The portion of the syllabus relied upon reads thus:

“It is competent for the physician of a testator to express an opinion as to the actual condition of his patient’s mind, founded on his study and observation of the testator while in professional attendance on him at the time and prior to the date of the will, and whether he was capable of comprehending- large and complicated business .propositions or the distribution of .a large estate.”- - -

We also quote from tbe opinion, page 135:

“Preceding the questions and answers referred to, the physician had testified to his complete knowledge of, and acquaintance with, the physical and mental condition of Mr. Byal covering a period of about fifteen years prior to his death. This knowledge had been obtained by the study of those conditions while in the performance of his duties as the physician of testator during that period and through the close association and complete opportunity which follow that relationship. In that testimony the doctor had fully described the gradual, well-defined and constant decline in the mental and physical powers of the testator after the year 1900, due to the influences of extreme old age, the effects upon his nervous system of different attacks of sickness and of painful and exhausting operations on his eyes.”

And from page 137:

“The last three questions differed from those that preceded them in that they inquired for the opinion of the doctor as to the capacity of the testator based upon the knowledge which the doctor himself had' of his mental and physical condition, all of which he had fully detailed in the preceding parts of his evidence. lie was asked to take into consideration the diseased and enfeebled condition of the testator, both mentally and physically, as he had already described it, and to give an opinion as to whether he was capable of understanding and deciding large and complicated business propositions, and the division and distribution of an estate valued at about $70,000. It called fdr his opinion as an expert, based on facts within his own knowledge and as to which he had testified, concerning the capacity of the testator to comprehend the matters referred td. This was an evidential fact, proper to be given to the jury as evidence, to be considered by them along with all the other evidence in the case in the determination of the ultimate question at issue.”

It is true that the question propounded to the family physician in the above case was the same question asked the employees and acquaintances of testator. But in other respects there is a vast difference. The Supreme Court, in the case cited, bases its opinion, holding the evidence admissible, upon the fact that the witness had been for fifteen years the physician of the testator, and that the question and answer were preceded by a long examination of the doctor during which he had detailed the gradual decline of his patient into a condition of enfeebled body and mind.

We do not think the rule established in that case should be extended so as to apply to the very different character of testimony allowed by the trial court in the instant case.

For these reasons the judgment will be reversed, and a new trial granted.

Jones (Oliver B.), J., concurs.

Gorman, J.,

concurring.

I concur in the conclusion reached by the majority of the court that the judgment must be reversed, not only for the reasons assigned in the opinion of the majority, but for the following additional reasons:

It appears from the record in the case that John Niemes owned and conducted a saloon, restaurant and billiard hall on the south side of Fifth street just west of Vine, in Cincinnati; that.he had carried on that business there for several years and had accumulated quite a competence. He had in his employ from fifteen to twenty persons — bookkéepers, bartenders, waiters, cooks, dishwashers and others — and he served a great number of people with meals every day. The receipts of his business approximated $300 a day or about $100,000 a year. The business required close attention, application and considerable ability, and Niemes manifested a peculiar and special ability to conduct a cafe and saloon. He had been suffering for some time from stone in the kidney, and on the 20th of January, 1913, he decided to go to the hospital and have an operation performed for its removal. On this day, previous to going to the hospital, he executed his will. The record discloses that he had under consideration the execution of his will for some time prior to the date of its execution — the period'extending back as far as August, 1912. The operation upon him was performed at Christ Hospital on the day following the execution of the will, January 21, 1913. A second operation was performed on him in February,- from the effects of which he died on the 17th of March, 1913, about two months after the execution of the will.

The plaintiffs in error, who are the representatives of his deceased mother, the brothers, the nieces and nephews of John Niemes, claim that there is error apparent on the face of the record in this, to-wit: first, that the verdict of the jury and the judgment of the court are manifestly against the weight of the evidence; second', that there was no evidence of undue influence offered in the trial of the case and that therefore this question should have been withdrawn from the consideration of the jury; third, that the court erred in charging the jury upon the question of undue influence in the absence of evidence tending to support such question; and also in the general charge and in the giving and refusal of special charges; fourth, that the court erred in the admission of evidence objected to at the time by counsel for plaintiff in error.

A great number of witnesses were offered by the contestant and the proponents of the will. No physicians were called by the contestant to testify as to the mental condition of John Niemes at, before or after the time he executed the will. The physician attendant at his last illness, and the physicians who called upon him on one or two other occasions, testified that he was mentally sound. The nurses who attended him at the hospital during the period of almost two months, testified that he was mentally sound. Other persons connected with the hospital who came in contact with Niemes and had occasion to observe him, testified that he was mentally sound. The witnesses to the will, both lawyers, testified that he was mentally sound at the time he executed the will. Many other witnesses who were called, who had occasion to observe Niemes from time to time covering a considerable period prior to the execution of the will, all testified that he was mentally sound and capable of making a will.

Many witnesses were called by the contestant, among them being waiters, bartenders and others who had been employed by Niemes in his business. Most, if not all, of these witnesses testified that in their opinion Niemes was not mentally sound. Their judgment was based upon their observation of him. They testified that at times he was nervous and not interested; absentminded ; would abruptly leave people; would forget things very readily; that he would discharge some of his people and re-employ them; that he had arguments with people, and many other incidents were recited upon which they based their opinions as to his mental capacity.

I am of the opinion that when the presumption of law that the probating of a will makes it a prima fade case as to its validity, is added to the testimony of the physicians who waited upon him, the nurses who attended him, the witnesses who attested the will — in opposition to the testimony of persons who were not in as good a position to observe Niemes’ mental condition, the verdict of the jury is manifestly against the weight of the evidence. It appears to me that the jury undertook to substitute its will and its judgment for that of John Niemes, and that because the will was not such as the jury would have made, they conceived it to be their province to set aside the will. I am of the opinion that the testator should be the one to make his will and not a jury, as appears to have been done in this case.

Furthermore, I think the record shows that there is not a scintilla of evidence in this case tending to show undue influence. 1^ is true that the brothers, Henry Niemes and Jacob Niemes, are beneficiaries under the will, and it was charged by the contestants that the testator had been unduly influenced by Henry and Jacob Niemes, and by Louis Kohl, the attorney who drew the will. There is no evidence whatsoever that Jacob or Henry Niemes, or Louis Kohl, exerted any undue influence, or any influence whatsoever to induce John Niemes to execute this will. There is evidence by Mrs. Niemes, the contestant, and a friend of hers, Mrs. Hobson, that John Niemes had said on one or two occasions that his brother Jake, who lived in Chicago, had asked him to make a will and that he had said he didn’t see any reason for making a will. There is also evidence tending to show that Jacob Niemes knew of John’s intention to make a will and that he was present on one or two occasions when John discussed his will, with his attorney, Louis Kohl. Manifestly, this is not evidence of undue influence. Under the law, one may influence another to make a will in his favor if he so desires, provided he does not make any false representations or practice impositions upon him to induce him to make a will, in substance perpetrating a fraud upon the'testator. But there is no evidence in this case, or any circumstances, from which undue influence could be found or inferred. The mere fact that Jacob and Henry Niemes are beneficiaries under the will does not even tend to establish undue influence. They were his brothers, and it would appear to be perfectly natural for him to remember them in his will; nor can any presumption or inference of undue influence be drawn from the fact that they are beneficiaries under the will; nor could any presumption of undue influence be drawn from the fact that they were in a position to have unduly influenced him.

Counsel for defendants requested the court to give several special charges which tended to eliminate from the minds of the jury the question of undue influence. These special charges, numbered 1, 2, 3 and 4, were refused. In refusing to give thém it appears to me that the trial court erred. These charges were all to the effect that there was no evidence in the ease that the paper writing purporting to be the last will and testament of John Niemes was executed while he was under restraint or undue influence and therefore the jury were not to consider the question of undue influence in determining whether or not the paper writing submitted to them was the last -will and testament of John Niemes. If there was no evidence of undue influence, there should have been no charge touching this question.

It has been urged that in view of the fact that there were two issues in the ease, to-wit, the mental capacity of John Niemes to make a will, and the question of undue influence exerted upon him, the fact, if it be a fact, that it was error on the part of the trial court in refusing to give the special charges and in incorporating in his general charge the question of undue influence, was not prejudicial to the plaintiffs in error because, non •constat, the jury may have found that the paper writing was not the last will and testament of John Niemes because of his mental incapacity.

But there were not two issues in the -case. There was only one issue, and that was whether or not the paper writing was the last will and testament of John Niemes. It was not the last will and testament of John Niemes if he did not have mental capacity to make a will, or if he was unduly influenced to make the will. The reasons or grounds upon which the jury were to determine whether the paper writing was or was not John Niemes’ will were the facts as to his mental capacity, and undue influence; but these facts do not constitute the issues in the case, and therefore the rule invoked by counsel for defendants in error that even though there was no undue influence shown, nevertheless the verdict and judgment should stand because on the other issue, to-wit, mental capacity, the jury were warranted in setting aside the will, does not hold.

If there was no "evidence of undue influence and the court charged the jury upon that question, it is impossible for this court or any other court to say that the jury did not return a verdict setting aside the will on the iground of undue influence. It was error to refuse to give these special charges, and it was error to give the general charge as given; and these errors were prejudicial, and being prejudicial, the verdict of the jury should not stand.


author: Chittenden, J.

text:
    MODIFICATION OF A DECREE FOR. ALIMONY AFTER. TERM.
    Court of Appeals for Lucas County.
    Edna K. Sager v. George Lynn Sager.
    Decided, November 27, 1916.

      Alimony — Changed, Circumstances of the Parties — Sufficient Ground for a Modification of the Award — Case Presented Where Former Husband’s Circumstances Had Greatly Improved — Probable Effect of the Sale of a Judgment for Alimony.

    After a decree of divorce and alimony has been granted a wife, the decree awarding alimony may be modified after the term at which it was granted when the application therefor is based upon new facts thereafter transpiring, of such character as to make the modification necessary to suit such altered conditions.

      J. P. Crawford, for plaintiff in error.

      E.H. Horton, contra.
   Chittenden, J.

Error to the Court of Common Pleas.. ,

The plaintiff in error filed a petition in the common pleas court seeking to have a former decree of alimony in her favor modified. • A demurrer to the petition was sustained, and no further pleadings being filed, the petition was dismissed. Error is prosecuted to this action.

The petition sets forth, in substance, that in 1912, the Court of Common Pleas of Lucas County granted her a divorce from the defendant, George Lynn Sager, and at the same time awarded a decree for alimony in her favor in the sum of five hundred dollars. She alleges that she was at the same time given the care, custody and control of their two children, now aged ten and eleven years respectively. That she has had the care and custody of the children since that time and that no part of the' decree of alimony has been paid. It is alleged that at the time of the decree the defendant was possessed of no property and that he was at that time earning but $50 a month. That since the date of the decree the defendant has become an experienced electrical worker and that he now earns $85 per month, and that in November, 1914, he was bequeathed personal property of the value of about $15,000 and was devised real estate of the value of $10,000. She therefore asks that in view of the changed condition of the parties the former order and decree of alimony be modified so as to meet and conform to such changed conditions and circumstances.

The nature of alimony is set forth by the Supreme' Court in Fickel et al v. Granger, 83 O. S., 101, 106. It is there said that:

“Alimony is an allowance for support, which is made upon considerations of equity and public policy. * * * It is based upon the obligation growing out of the marriage relation, that the husband must support his wife, an obligation which continues even after a legal separation without her fault.”

The petition sets forth that neither the plaintiff nor the defendant has been married since the granting of the divorce, and that the decree for alimony remains in effect and unpaid. If it be true, as stated by the Supreme Court in the above quotation, that the duty to support, in case of divorce because of the aggressions of the husband, continues after the granting of the divorce, then there is every reason why subsequent changes of condition should be considered by the court when its jurisdiction is sought for the purpose of having a former decree modified. We think that the question involved in this demurrer is determined by cases adjudicated in this state.

In Olney v. Watts, 43 O. S., 499, it was expressly held that a former decree of alimony may be modified in an original suit brought for that purpose, upon proper allegations of changed condition and circumstances of the parties. It was there determined that such action to modify á former decree must in no wise be based upon facts or circumstances which existed and were or might have been pleaded in the former action, but must be confined to new facts thereafter transpiring, of such character as to make the modification necessary to suit such altered condition of the parties. In that case the award of alimony was made payable in installments, but the exact amount was determined and the exact dates upon which the payments should be made were fixed by the decree. It was not a decree where installments were ordered paid until the further order of the court. So that, we are unable to distinguish any difference in principle between the case under consideration in which alimony was granted in one given sum and the decree in Olney v. Watts, in which the total amount was adjudged and was made payable in separate installments. The court say in the course of the opinion:

“ The real contention touches the right and duty of the court in a case like this to review, modify or vacate a former decree granting álimony payable in installments by an original suit or proceeding instituted for that purpose, when such power had not been reserved by the language and form of the former decree. ’ ’

After a learned discussion of the subject the court held, as above indicated, that the court had the power to so review and modify a former decree.

The power of the court to review and modify a former decree of alimony was also sustained by the Court of Appeals in Hamilton County in Baker v. Baker, 4 Ohio App. Rep., 170; 21 C.C.(N.S.), 590; 35 C. C., 243. The circuit court of this county seems to have reached the same conclusion in the case of Meissner v. Meissner, 5 C. D., 305.

Upon the strength of the decisions above cited, we hold that the common pleas court erred in sustaining the demurrer to the petition. The judgment will, therefore, be reversed and the cause remanded with instructions to. overrule the demurrer and for further proceedings.

It was stated in argument by counsel for defendant in error, and not denied by counsel for plaintiff in error, that the judgment for alimony had been sold by the plaintiff and that she no longer had any interest in the same. This fact does not appear from the allegations of the petition, but if such should be the fact it would present a very different question to be determined by the court, and this decision upon the demurrer in nowise indicates what the decision of the court would be if it were alleged in the petition, or if it were alleged in the answer and proven, that the plaintiff was no longer the owner of this judgment.

Richards, J., and Kinkadb, J., concur.


author: By the Court

text:
    PUBLIC LIGHTING CONTRACTS.
    Court of Appeals for Perry County.
    The Ohio Light & Power Company et al v. State of Ohio, on Relation of Thomas M. Potter, Prosecuting Attorney of Perry County.
    Decided, June 30, 1914.

      County Commissioners — Without Authority to Contract for Lighting County Buildings Without First Advertising for Bids — Section 2435-1.
    A contract entered into between county commissioners and a public lighting company for the lighting of county buildings for a definite period is invalid and will be canceled where made without first advertising for bids, notwithstanding no company other than the one with which the contract was made was engaged in furnishing light for public or private consumers in that locality or had the right to use the streets for that purpose, and the contract entered into without advertising was entered into in good faith, and the prices therein specified for lighting are reasonable, and the expense of advertising for bids has been saved.

      T. B. Williams, for plaintiff in error.

      T. M. Potter, Prosecuting Attorney, contra.

      (Shields, Voorhees and Powell, JJ.).
   By the Court

This action was commenced in the court of common pleas of this county by the defendant in error, who sought to cancel and set aside three certain contracts that had been entered into between the Ohio Light- & Power Company and the other plaintiffs named, who are the commissioners of Perry county, Ohio, for the furnishing of electric light by said power company for the use of Perry county in the lighting of its jail, infirmary and the childrens’ home buildings which belong to the county. The principal ground upon which it was sought to set aside the contracts was that the same had been entered into between the light and power company and the commissioners of said county without advertising for bids and in violation of the statutes of Ohio with relation to contracts entered into by county commissioners. The particular section of the statute that is claimed to have been infringed is Section 2435-1, and which reads as follows:

“The commissioners of any county may át any time either before or after the completion of any county building, invite bids and award contracts for supplying such building with light, heat and power, or any of the same, for any period of time, not exceeding ten-years, but none of the provisions of Section 5660 of the General Code shall apply to any such contracts.”

The latter clause of the statute quoted relates solely to the certificate required by law to be filed by the clerk or auditor before a contract for the expenditure of money can be entered into, certifying that the money to carry out such contract is in the treasury, or levied and in course of collection, and does not have any bearing upon the case presented. The pleadings show that a contract was entered into between the parties, plaintiff in error, the Ohio Light & Power Company, on the one hand, and the commissioners of Perry county, on the other hand, by which the Ohio Light & Power Company were to supply the light for the buildings named for a period of five years, at a price agreed upon, with the option to continue for five, years longer. .

It is contended by tbe prosecuting attorney that by tbe terms of this statute, the commissioners were required to submit its proposals for light at c'ompetitive bidding, which was not done, and that submission is a condition precedent to the right of the commissioners to enter into any contract for the purpose of supplying light to those buildings, and that because it had been omitted, the contracts themselves were void and should be canceled and set aside.

The defendant, the Ohio Light & Power Company, set out for a defense, in substance, that at the time of entering into each of said contracts, which it admits were made, there was no other, firm, person or corporation, except the answering defendant, in said township where tbe buildings were located, or in the village of New Lexington, furnishing light to public or private consumers, nor was there any other person, firm or corporation, except the answering defendant, at the time of the entering into of said contracts, or since, that had the right to the use of the streets, alleys and public places within the said village of New Lexington, Ohio, for the purpose of transporting and conducting electric current in said village.

It is further said as a part of its said second defense, that it is the only person, firm or corporation furnishing light to public or private consumers in Perry county, Ohio, except a small plant at Junction City, about five miles from the public buildings of Perry county, Ohio, for the lighting of which the contract was made; and further, that there was no other person, firm or corporation, in said county, village or township aforesaid, that could have bid on the lighting of said public buildings, except this answering defendant, in case said county commissioners had advertised for bids for all of said buildings. Further, that said contracts were made in good faith, and the prices therein specified for the'lighting.of said buildings were and are reasonable. For the reasons given, it alleges that the advertising for bids by the county commissioners was unnecessary and that by omitting said advertising there was a saving of expense to the taxpayers, as there could have been no competition whatever in case advertising was had.

A demurrer was filed to the said second defense.

The question presented is rather a new one in the state of Ohio. It is a general principal that all contracts relating to public affairs and involving annually a large amount of money must be let at public bid, and a majority of the court have arrived at the conclusion that this demurrer is well taken; that the second defense as set out and alleged, does not state a defense to the cause of action contained in the petition, and that the contracts entered into between the Ohio Light & Power Company and the commissioners of Perry county, having been let •without notice or inviting bids from any other source, are void, and that the action of the court of common pleas in cancelling and setting aside such contracts was not erroneous, and that the judgment of that court should be affirmed. The cause will be remanded to the court of common pleas for execution, and -exceptions may be noted.


author: Gorman, J.

text:
    INCOMPETENT RECITALS IN A STOCK LEDGER..
    Court of Appeals for Hamilton County.
    John N. Russell, Administrator of the Estate of J. N. Russell, Deceased, v. The Fourth National Bank.

    Decided, February 5, 1917.

      Corporations — Stock Transferred Without Surrender of Original Certificate — Entries Showing Transfer in Stock Ledger Inadmissible — As Against Present Holder of Old Certificate Seeking to Have New Certificate Issued to Him and Payment of Dividends Accruing on the Old Certificate.

    Entries in a stock ledger showing the transfer of certain stock of the corporation, represented by a certificate which was not surrendered, are selfserving declarations and are not adrñissible in an action to compel the issuance of a- new certificate to the administrator of the holder of the unsurrendered certificate, in the absence of evidence that the original owner acquiesced in or had • knowledge of the making of said entries.

      Tuttle & Boss, for plaintiff in error.

      Charles B. Wilby, William Worthington, Clark Wilby, contra.

      Reversing Russell v. Fourth National Bank, 18 N.P.(N.S.), 585.
      Motion for order directing Court of Appeals to certify record overruled by the Supreme Court April 3, 1917.

   Gorman, J.

This ease is here for the second time on error to the judgment of the Superior Court of Cincinnati. The ease was first tried before Honorable Robert C. Pugh and judgment rendered by him in favor of the defendant. The report of his opinion will.be found in 15 N.P. (N.S.), 184. The plaintiff in error then prosecuted error to this court, and Judges Grant, Meals and Carpenter from the eighth district, sitting in this county in place of the present judges of this court, reversed the judgment of the superior court, a report of which decision will be found in'23 C.C.(N.S.), 1. The case was remanded to the superior court for further proceedings, and was tried before Judge Stanley M'errell, and judgment was again rendered in favor of the defendant. A report of .Judge Merrell’s decision will be found in 18 N.P.(N.S.), 585. Plaintiff in error is now here asking for a reversal of that judgment.

The facts necessary to be considered are set out in the reported decisions above referred to, and it will not be necessary for this court to re-state them in order to determine whether the judgment should be reversed or affirmed.

The judges of the Eighth District Court of Appeals held that the Superior Court of Cincinnati committed error in admitting in evidence against the plaintiff in error books of entry of the Fourth National Bank tending to show a transfer of the stock of the decedent of plaintiff in error, to one W. F. Colburn; and further held that the entire structure of the defense rested upon these book entries, and that in view of the fact that error was. committed in admitting these entries, the entire structure of the defense of the defendant fell.

Upon a re-trial of the ease before the superior court, these book entries which the court of appeals in the former decision held were inadmissible, were again admitted in evidence. The theory upon which they were admitted was, that in the trial before Judge Merrell it was shown that the entries were in the hand-writing of the former'cashier of the Fourth National Bank, and that in the regular course of business it was the duty of the cashier of the bank, in 1867, to make entries in the stock ledger. It was further shown that the cashier was dead, and his hand-writing in the entries in the stock ledger was indentified by the present cashier, Mr. Bartlett. It was further claimed in the second trial that these entries in the stock ledger of the Fourth National Bank were admissible in evidence under what is known as “the shop book 'rule,” and that this claim was not put forth at the first trial nor did the court of appeals, in reversing the case, base its opinion on the fact that the book entries were inadmissible under the “shop book rule.”

But it was not shown in evidence that Russell, the decedent, had any knowledge of these entries being made in the stock ledger of the Fourth National Bank, whereby his stock purported to be transferred from him to W. F. Colburn; nor was it shown in evidence that he had ever acquiesced in these entries. The court of appeals in its former decision held that these entries were mere self-serving declarations, and it appears to us that they have the same character now as they had before it was shown who made the entries and when they were made. It is not shown that any actual transaction took place such as these entries would purport to show; the evidence does not disclose under what circumstances these entries were made in this ledger; the evidence does not show upon what authority or by whose authority they were made, so far as Russell or Colburn is concerned. It therefore appears to us that in the absence of such a showing these entries were still — as they were when the court of appeals passed upon the question before — self-serving declarations of the Fourth National Bank and inadmissible against Russell’s administrator.

The “shop book rule” which was invoked by Judge Merrell in admitting these book entries is a rule that books of account of merchants, shop-keepers and others who record transactions of purchases, sales or services or labor are admissible in evidence in controversies between the parties, when it is shown that the entries were made in the usual course of business, either by the parties themselves or by their clerks under their direction, and when the hand-writing is established under oath, and that the entries were made contemporaneous with the transactions. We do not understand that this rule extends beyond transactions of purchase and sale of goods or merchandise, or the employment of labor' and services rendered; but in some cases the rule does apply to bank transactions between the customers of the bank and the bank, where there have been deposits of money and withdrawals.

The only case cited by the court below in support of the admission of these book entries in the stock ledger of the defendant in error is that of Evans v. Lake, referred to in Buller’s Nisi Prius, 282. This book was published in 1806. It is “An Introduction to the Law Relative to Trials at Nisi Prius, published by Francis Buller, Esq., of the Middle Temple.” It does not purport to give a report of eases cited, but merely to give a reference to tbe principles decided. The case cited by the learned judge in the trial below, at page 282 of this book, is referred to by the author as having been decided on May 3, 1738. In that case the author says, there was admitted in evidence on behalf of the defendant and against the plaintiff Lake, a book belonging to the defendant Sir Stephen Evans, and an entry showing payment of money made by him, which entry was in the hand-writing of his clerk, Jeremy Thomas, who was proved to be dead. The court allowed this entry to be offered in evidence upon the proof of the facts above stated. The controversy in that case was between Mr. Lake and Sir Stephen Evans, and the book in which the entry was made belonged to one of the parties, Sir Stephen Evans.

It appears to us that the rule laid down in that case would not justify the admission of the stock ledger entries of the Fourth National Bank in the case at bar. The stock ledger in the case at bar does not undertake to record the transaction between Russell and Colburn. If it were the book of Mr. Col-burn showing the payment to Russell for his stock, we have no doubt that under the case cited — Evans v. Lake — the entries might be admissible on showing that Mr. Colburn made the entries and that he is now dead. Or, if it were the account book of Mr. Russell, showing the sale of the stock,-and the entry was shown to be that of Mr. Russell or his clerk, and that the person who made the entry was now dead, there would be no doubt but that the entry would be admissible. But to take the books of a third person not a party to the transaction and permit them to be offered in evidence, without any evidence of knowledge on the part of Mr. Russell or any acquiescence on his part, and without a showing of the -circumstances under which the entries were made, or by whose or what authority they were made — that is, whether by the authority of Russell or of Col-burn, the parties to the transaction — -it appears to us would be stretching the doubtful rule laid down in the case of Evans v. Lake. And so we have reached the conclusion that notwithstanding the additional evidence that was offered in the second trial of this casé, the entries in the stock ledger were inadmissible against the administrator of J. N; Russell, and that the court below erred in admitting this record; and for this reason the judgment of the superior court must be reversed.

It is further claimed by the plaintiff in error that the court below erred in admitting evidence tending to show the financial condition of J. N. Russell from 1867 down to the time of his death in 1895, and in showing what property he had and what he did not have. We think this evidence was admissible for the purpose of showing the probability or improbability of Russell having a certificate of stock in his possession worth upon its face $3,000, and failing to collect the dividends for a period of twenty-eight years, and failing to realize on this stock. But we do not think that such evidence would have very great weight in overturning the rights of the plaintiff in error under a certificate of stock solemnly issued by the Fourth National Bank in 1865, found among the assets of the deceased, J. N. Russell, upon his death, which certificate is admitted by the Fourth National Bank to be genuine.

It is urged by counsel for defendant in error that' the title to the stock in the Fourth National Bank does not have to be evidenced by a certificate, and that the transfer of the stock and the title thereof is really made upon the books of the bank, and that for that reason the entries upon the'books of the bank showing the transfer of stock are admissible in the same sense or to the same extent that the record of deeds is admissible to show the transfer of title to real estate. It is true that formerly many corporations issued no certificates of stock, but showed upon their books the aliquot part of the capital stock held by the stockholders of the corporation, and frequently mere receipts were given to stockholders upon the payment of their stock, and the amount of stock which they owned in the corporation was de.terminable only by the books of the company.

But in this case no such practice was pursued. Certificates of stock were issued, and no doubt a stock certificate book was used by the bank and stubs remained in the hands of the bank showing to whom the stock certificates were issued. If there had been no stock certificates issued by tbe bank it may be that tbe books would be admissible for 'the purpose of showing who were the stockholders and how much they owed, inasmuch as that might be the only method of showing who were the stockholders and the amount of their holdings.

It .is further urged by counsel for defendant in error that under the federal statute, 5210 R. S. U. S., this stock ledger of the Fourth National Bank is a quasi-public record, because that section requires that the president and cashier of every national bank shall keep a full and correct list of the names and residences of all the shareholders in the association, and the number of shares held by each. But it has been held in several decisions that the purpose of this section is merely to give the public, dealing with the bank, a knowledge of the names of its stockholders, and to what extent they might be relied on to give safety to those dealing with the bank. Pauly v. State Loan & Tr. Co., 165 U. S., 606; Waite v. Dowley, 94 U. S., 527; Carey v. Williams, 79 Fed., 906; Foote v. Anderson, 123 Fed., 659.

Counsel for plaintiff in error ask this court to render the judgment which they claim the court below should have rendered upon the hearing of the case, to-wit, a judgment in favor of the plaintiff, directing the officers of the Fourth National Bank to transfer to the plaintiff in error this stock or, in lieu thereof, to account to him for the value of the stock and the dividends which have not been paid to Russell or his administrator.

This court is of the opinion that it is the duty of the court below upon the hearing of the evidence, to enter such a judgment as the evidence warrants; and this will probably involve the question of an accounting, and evidence may have to be taken upon that branch of the ease. Evidence may also have to be taken as to the value of this stock as of the time it was alleged to have been converted, or at the time of the trial. Evidence may also have to be taken as to other questions which we do not now perhaps foresee; and for this reason we deem it proper to reverse this judgment and remand the cause to the superior court for such proceedings as are authorized’by law.

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