author: Wiseman, F. J. By the Court.

text:
    Hile, Appellee, v. Besecker, Appellant.
    (No. 650
    Decided November 12, 1947.)

      Mr. Wilbur D. Spidel, for appellee.

      Mr. Floyd D. Smith, for appellant.
   Wiseman, F. J.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Darke county, affirming a judgment of the justice of the-peace of Brown township in that county, in favor of the plaintiff, in an action in forcible entry and detain--er, to recover possession of a residence property situated in the city of Greenville, Ohio.

The errors assigned by the defendant, appellant, herein, are: First, that the notice to vacate the prermises was premature, and, therefore, illegal and of no-force and effect; second, that there was no violation of' the terms of the lease agreement shown by subletting: to roomers.

The_ record shows that the defendant occupied the-premises in question under a month-to-month tenancy, the amount of rent being $25 per month, payable in ■advance on the first day of each month. On October 18, 1946, the plaintiff served the defendant with- a. notice to leave the premises on or before October- 23,. 1946. The defendant contends that her rent was paid for the month of October, and hence the notice- was-premature, illegal and of no force and effect, as the notice required her to leave the premises before- the ■expiration of her monthly term. This question was seasonably raised at the close of all the evidence by defendant’s motion for a directed verdict, which motion 'was overruled.

In support of that contention, Mone v. Pope, 9 C. C., 168, 6 C. D., 384, is cited, which holds:

“Although a notice to quit premises may be served while the tenant is lawfully in possession, the day ■designated for that purpose must be at or after the expiration of the term.”

We regard that proposition to be sound law. In applying the proposition of law to the facts in the instant case we are required to determine the sufficiency of the evidence. May a reviewing court consider the sufficiency of the evidence on exceptions taken to the ■opinion of the justice “upon questions of law and evidence* ’ under Section 10459, General Code, which provides as follows:

“Exceptions to the opinion of the justice in cases under this chapter upon questions of law and evidence may be taken by either party, whether tried by jury or otherwise. But in proceedings to reverse, vacate or modify the judgment or final order in such cases, an appeal on questions of law may be filed in the common pleas, only by leave of such court, or a judge thereof, or in the absence of such judge from the county, by leave of the judge of the Probate Court therein, and upon notice of such application first given to the opposite party.”

In Ohio, ex rel. Newshauler & Jones, v. Wood, Justice of the Peace, 22 Ohio St., 537, it is held that:

“Exceptions to the.opinion of the justice, upon ‘questions of law and evidence, ’ in actions of forcible entry and detainer, does not extend to or include questions-touching the weight or sufficiency of the evidence, but only such as relate to its competency. ’ ’

In Mack v. Eckerlin, 17 C. D., 133, 2 O. L. R., 441 (affirmed without opinion, 75 Ohio St., 627, 80 N. E., 1129), the court followed the Wood case, supra, and held:

“A reviewing court is not authorized to reverse the judgment of a justice of the peace in an action of forcible entry and detainer, upon the ground that it is not sustained by sufficient evidence.”

Those cases were decided prior to the amendment of Section 10459, General Code. In the amendment the words “a petition in error” were eliminated, and the words “an appeal on questions of law” were substituted. This amendment became effective on January 1, 1936, the effective date of the Appellate Procedure Act, and was a part of House Bill No. 42 which contained the Appellate Procedure Act, the stated purpose of the act being: “To establish a simplified meth-' od of appellate review.” The first section of the Appollute Procedure Act (Section 12223-1, General Code) defines the words “appeal on questions of law” as follows: -

“The [words] ‘appeal on questions of law’ shall be construed to mean a review of a cause upon questions of law including the weight and sufficiency of the evidence and shall include all the proceedings heretofore and otherwise designated in the General Code as proceedings in error.”

‘ Several sections of the Appellate Procedure Act (Sections 12223-23 to 12223-26, General Code, inclusive) provide for appeals from the justice’s court. The expression “appeal on questions of law” is used in several sections of the act relative to appeals from the justice’s court. The conclusion is inescapable that the state Legislature intended the definition of “appeal on questions of law” as given jn Section 12223-1, General Code, to apply to appeals on questions of l&w in other sections of the act relating to appeals from the justice’s court.

Likewise, the amendment to Section 10459, General Code, being made at the same time and enacted as part of the same bill as the Appellate Procedure Act, the intention of the Legislature is clear that it intended to give the expression “appeal on questions of law” in Section 10459, General Code, the same meaning as used in the Appellate Procedure Act. There is no -other section in the General Code where this expression js defined. We conclude, therefore, that a reviewing court is now given authority to consider the sufficiency of the evidence in forcible entry and detainer cases. This view of the matter was taken by the Common Pleas Court of Butler county in Herman v. Hileman, 29 Ohio Opinions, 251, 13 Ohio Supp., 111 (opinion by Judge Cramer), in which it was held that Sec-lion 12223-1, General Code, defines “appeal on questions of law” as used in Section 10459, General Code.

In determining the sufficiency of the evidence with respect to the payment of rent, we find from the record that the rent was paid to the plaintiff who each time gave a receipt therefor up to and including the month of July 1946. On direct examination the plaintiff testified that he had not received the rent for the month of October 1946. The testimony relative to the payment of rent for the months of August, September, October and November must be considered. On cross-examination the plaintiff admitted that he received by registered mail a money order for the rent for the month of August; that a money order for the rent for the month of September was sent by registered.mail, dated August 30, 1946, and was receipted for by Spidel, attorney for the plaintiff, whom he testified was at that time acting as his agent. The plaintiff testified that on September 30, 1946, the rent for the month of October was paid to the plaintiff’s wife, who signed a receipt therefor which did not designate the month for which the rent was paid. The receipt was introduced in evidence.

On October 30, 1946, a cheek for the rent for the month of November was sent to the plaintiff by registered mail. The check was not'accepted by the plaintiff. Thus it clearly appears that the defendant has paid and the plaintiff has received the rent for the premises up to the last day of October 1946. The claim is made that the money order sent to the plaintiff by registered mail under date of August 30,1946, for rent for the month of September, and received by Spidel, is being held by him. No contention is made that the rent for September was rejected or that the plaintiff notified the defendant at any time that the rent for the month of September was refused. This money order was not presented in evidence.

The plaintiff testified that Spidel was holding the money order for him. If this money order is not regarded as payment for the rent for the month of September, then the cash payment made on September 30, 1946, to the wife of the plaintiff would be applied as rent for the month of September. If the money order is considered as payment for the rent for the month of September, then the payment made to plaintiff’s wife on September 30, 1946, must be applied on. the rent for the month of October. The plaintiff in his testimony supports this theory of the case. Likewise, the defendant testified relative to these payments and claims that the cash payment which she made to plaintiff’s wife under date of September 30, 1946, was in payment for the rent fo'r the month of October.

In Pillot v. Moss, 72 Ohio App., 492, 53 N. E. (2d), 73, the court held:

“No acceptance of payment of rent is shown where the landlord, without cashing them, holds as evidence, money orders for such payment.”

The court, in discussing this phase of the case, held on page 495:

‘ ‘ The plaintiff did not accept the money orders sent by defendant through the mail, and holding them for evidentiary purposes, without cashing said orders, was not, in our judgment, tantamount to acceptance thereof by plaintiff, especially in view of her continued assertion, communicated to defendant, that said money orders would not be and were not accepted as in payment of rent.”

This court in the case of Booher v. Lowe, 49 Ohio Law Abs., 126, 73 N. E. (2d), 199 (Court of Appeals for Montgomery county), under date of April 30,1947, held that the retention by the landlord for evidentiary purposes only of two money orders for a period of less than one month and the tender back on the day of trial did not operate as an- acceptance of payment of rent by implication of law or by estoppel.

In the ease at bar the evidence does not show that the plaintiff at any time proposed to hold the money order for evidentiary purposes or informed the defendant that the money order would not be accepted as payment of the rent; neither did the plaintiff tender back on the day of trial the money order or see fit to present it in evidence. Under the evidence in this case the court concludes that the acceptance of the money order by the plaintiff operated as payment of the rent for the month of September. It becomes clear then that the cash money paid by the defendant to the plaintiff’s wife under date of September 30, 1946, was and should have been applied for the payment of the rent for the month .of October 1946. The rent being paid for the month of October, the notice requiring the defendant to leave the premises on or before October 23, 1946, which was eight days before the expiration of the defendant’s monthly term for which rent had been paid and accepted, was premature, illegal and of no force and effect. The court should have sustained the defendant’s motion for a directed verdict at the close of all the evidence.

The second assignment of error raises the question as to whether there was a violation of the terms of the rental agreement by reason of subletting of several of the rooms in the residence to roomers. It may be conceded that under state law in a month-to-month tenancy the landlord would be entitled to restoration of the premises at the end of any monthly period. Whether the tenant had sublet certain. parts of the residence to roomers would not be an issue. This issue arose only by virtue' of the rent regulations of the Office of Price Administration. However, the record in this case shows that the area director of the Office of Price Administration issued to the plaintiff a certification of eviction which was presented in evidence. The issuance of the certificate of eviction being shown, it was not incumbent on the plaintiff to go further and introduce evidence to prove that he had performed and fulfilled all conditions precedent under which the certificate of eviction was issued. In Jackson v. Richards, 47 Ohio Law Abs., 631, 70 N. E. (2d), 692, this court held:

“Where a certificate of eviction is issued by an area rent director of' the Office of Price Administration, under the provisions of Section 6 b of the federal rent regulations, the notice served upon the tenant prior to the institution of an action in forcible entry and detainer need not state the grounds for such action, nor must a copy of such notice be given to the area rent office.

“The circumstances upon, which an area rent director issues a certificate of eviction under the provisions of Section 6b of the federal rent regulations, are-not review'able in an action in forcible entry and detainer instituted upon the authority of such certificate.”

In the application of that proposition of law to the. issues in this case it was not incumbent upon the plaintiff befbre he was entitled to restitution to prove that the defendant has breached her rental agreement by subletting a part of the residence to roomers. The certificate of eviction being issued and introduced in evidence, any evidence which was introduced in this case tending to show that the certificate of eviction was properly or improperly issued was incompetent, irrelevant and immaterial.

For reasons already stated, the judgment will be reversed and the cause remanded for further proceedings according to law.

Judgment reversed.

Miller and Hornbeck, JJ., concur.

(Decided December 4, 1947.)

On Motion for rehearing.

By the Court.

This cause is submitted on motion for rehearing. The effect of holding the postal money order -was considered by the court and discussed in the opinion. The contention is made that the rent control board allowed the plaintiff an increase in the rent on the basis of one dollar per month for each subtenant. The record shows that this increase was not allowed until October 24, 1946, effective the same day. The rent for the month of October was paid prior to the action of the rent control board granting an increase of rent. For this reason the increased rental allowance could not affect the October term.

The motion will be overruled.

Motion overruled.

Wiseman, P. J., Miller and Hornbeck, JJ., concur.


source: Caselaw Access Project

author: Matthews, P. J. Ross, J.,

license: Public Domain

text:
    The Karl Kiefer Machine Co., Appellee, v. Henry Niemes, Inc., Appellant.
    (No. 6929
    Decided March 22, 1948.)

      Mr. Jerome Goldman, for appellee.

      Messrs. Long & Bloom, for appellant.
   Matthews, P. J.

Because of the absence of a complete bill of exceptions, the many motions and the adjournment of the trial on the merits, the record is somewhat confusing. However, the following seem to be the essential facts:

The plaintiff filed its bill of particulars in the Municipal Court, alleging a cause of action for damages suffered by reason of relying on false representations as to the amount of material furnished by defendant under a cost-plus contract with plaintiff, whereby plaintiff was induced to pay $1,800 to the defendant. The difference between the amount of the material furnished and the amount represented was alleged to be $402.68, for which amount judgment was prayed.

In its statement of defense, the defendant admitted entering into the cost-plus contract, and alleged its performance by it, and that after performance, it submitted a bill for $2,469.19 to the plaintiff, which amount the plaintiff disputed and thereupon tendered to defendant a check for $1,800, with this endorsement thereon: “No receipt required. The endorsement of this check is acknowledgment in full settlement of item below. Date 11/1/45 amount invoice $2,469.19, discount or other deduction $669.19; net $1,800. Paid in full.”

The defendant alleged that it accepted and cashed the check in full settlement of the dispute between the parties.

The defendant alleged also that after it had accepted the check in full settlement the plaintiff claimed that certain material that had been delivered on the. plaintiff’s premises had not been used and that thereupon it recomputed its bill and found that it did in fact exceed the amount actually due by $416.91, which still left more than $1,800 due it. It therefore insisted upon the payment of $1,800 and the endorsement on the check as an accord and satisfaction.

By reply, the plaintiff reiterated the allegations of fraud and denied that the check was intended to be in full settlement of any items of material concerning which it alleged there had been no dispute.

The case came on for trial on these pleadings on August 8, 1946, and after a partial trial, the hearing was continued to August 13, 1946. On August 10, 1946, a cross-bill of particulars was filed. After another continuance, the ease came on for hearing upon which date the court entered upon its journal that the cause came on for hearing as of, August 8, 1946, “and at the conclusion of the evidence offered by the plaintiff; (1) On the motion of the defendant for judgment in its favor on the ground that the plaintiff’s own evidence disclosed an accord and satisfaction between the parties precluding plaintiff from the relief sought in its bill of particulars, and the court being fully advised in the premises, finds that the settlement agreement entered- into between the parties and referred to as the alleged accord and satisfaction was the result of mutual mistake and therefore of no force or effect * * * and should be set aside and held for naught.” The court, therefore, overruled the defendant’s motion. In the same entry, the court granted defendant leave to file the cross-bill of particulars, which had been filed on August 10,1946.

On December 2, 1946, the court granted the plaintiff leave to move to strike the defendant’s cross-bill of particulars from the files,. overruled it, then, granted it leave to demur, overruled it, and finally gave the plaintiff leave to file an amended affidavit of reply and statement of defense to the defendant’s cross-bill of particulars. In this amended reply to the defendant’s statement of defense, the plaintiff alleged several respects in which the defendant failed to perforin the obligations imposed upon it by the contract and then denied all allegations not specifically admitted. As an answer to the defendant’s cross-bill of particulars, the plaintiff set forth all the facts relating to the payment of the $1,800, including the misrepresentations and also the conduct of the defendant subsequent thereto and the reliance of the plaintiff thereon, and as a conclusion, that the defendant had ratified and affirmed the settlement, had “caused plaintiff to change its position thereby, and that the defendant should be estopped from going behind said settlement, and that the defendant also be barred from going behind said settlement on the ground that the defendant has not 'made restitution of the money received in said settlement, nor made a tender thereof.” In conclusion, the plaintiff prayed for the dismissal of the cross-bill of particulars and for a judgment on the plaintiff’s bill of particulars.

Upon the filing of the amended reply and answer to the defendant’s cross-bill of particulars, the defendant moved for judgment on the pleadings. The court found this motion well taken and sustained it, and thereupon entered-judgment in favor of the defendant for its costs.

The plaintiff moved to set aside the judgment and also applied for leave to file an amended answer to the cross-bill of particulars, eliminating therefrom all reference to accord and satisfaction. These were overruled, and thereupon the plaintiff gave notice of appeal to the Court of Common Pleas. That court reversed the judgment of the Municipal Court, on the ground that the Municipal Court had abused its discretion in refusing to allow plaintiff to file an amended answer to the cross-bill of particulars, and the defendant appealed therefrom to this court from that judgment of reversal.

We are advised by defendant’s counsel that its motion for judgment on the pleadings was “on the .ground that defendant’s original statement*of defense alleged an accord and satisfaction between the parties and the plaintiff’s amended reply likewise alleged in defense of said cross-bill an accord and satisfaction.” And we are also advised that the refusal to allow an amended answer to the cross-bill was for the reason that it came after judgment and also that it substantially changed the defense.

The pleadings clearly present issues of fact which, if found in favor of the plaintiff, would entitle it to recover unless precluded by the circumstance that its ■cause of action for deceit grows out of an attempt to compromise a pre-existing dispute, or because of plaintiff’s'reference to the compromise in its amended reply and answer.

Fraud in relation to accord and satisfaction is governed by the.same rules as in relation to other contracts. 1 American Jurisprudence, 222.

An examination * of the amended reply and answer to the cross-bill shows conclusively that the plaintiff never intended to abandon its cause of action for deceit set forth in its bill of particulars. In its amended, reply, it reiterated its prayer for judgment on that ■cause of action. Such examination also makes clear that the pláintiff was not asserting an accord and satisfaction as such as a defense to the cross-bill of particulars. It was the conduct of the defendant subsequent to the receipt of the check for $1,800, taken in conjunction with its receipt that was alleged as a bar •or estoppel. At no place in the amended reply did the plaintiff waive the fraud or abandon its cause of action for damages based thereon. The most that can be said is that the plaintiff, while denying the binding ■effect of an accord and satisfaction as to it, nevertheless, in the same case, was asserting that it was binding upon the defendant. In other words, the plaintiff was inconsistent or equivocal, but nothing more.

Assuming, for argument’s sake,,the unsoundness of this position, can it be said that this is an affirmance or ratification of the accord and satisfaction.

Asserting the validity of an accord and satisfaction-for plaintiff’s purposes, while denying its validity when used by defendant for his purposes, cannot be said to be a waiver of the accord and satisfaction. “A waiver is a voluntary relinquishment of a linown right. It is a matter of intention with knowledge of the right involved.” 40 Ohio Jurisprudence, 1233 et seq. In 56 American Jurisprudence, 115 et seq., it is said: “A prerequisite ingredient of the waiver of a right or privilege consists of an intention to relinquish it. No-man can be bound by a waiver of his rights, unless such waiver is distinctly made, with full knowledge of the rights which he intends to waive; and the fact that he knows his rights, and intends to waive them, must plainly appear.”

Nor can the action of the trial court in rendering* judgment on the pleadings be supported on the principle of election. There was no election made, but assuming that plaintiff had instituted an action based on the assertion of the- validity of the accord and satisfaction, that would have been no final and conclusive election.

The second paragraph of the syllabus to Frederickson v. Nye, 110 Ohio St., 459, 144 N. E., 299, 35 A. L. R. 1163, is as follows:

. “In order that an election' of one remedial right shall be a bar to the pursuit of another, the same must be inconsistent and the election made with knowledge and intention and purpose to elect. The mere bringing of a suit is not determinative of the right, but the party • making the election must have received some benefit under the same, or have caused detriment to the other party, or pursued his remedy to final judgment. ’ ’

Our conclusion is, that the trial court erred in rendering judgment on the pleadings for the defendant and that the Common Pleas Court did not err in reversing the judgment and remanding the case to that court for further proceedings according to law.The trial court, in concluding that the plaintiff had pleaded the accord and satisfaction as a defense to the cross-bill and had thereby irrevocably ratified it, erred, and, therefore, committed error in refusing to allow the plaintiff to amend its answer for that reason. Action by a court under a mistake of law is an abuse of discretion. Bauer v. Heaton, 68 Ohio App., 181, 38 N. E. (2d), 413, and cases cited.

' The trial court seems to have been under the impression that it was necessary to set aside the accord and satisfaction by the exercise of equitable jurisdiction as a condition precedent to the hearing of the plaintiff’s cause of action. Accordingly, the evidence as to that defense was heard and a formal judgment entered setting the accord aside. A trial on the merits of the plaintiff’s cause of action has not been had. Having determined that the accord and satisfaction alleged was not proven, the court should proceed to hear the other issues raised by the pleadings and render judgment according to its findings on those issues.

As this case should be remanded to the Municipal Court for further proceedings, it should be said that as the plaintiff seeks damages for being fraudulently induced to pay $1,800 in settlement of the cost-plus' contract, it can only recover the actual damage suffered through the fraud, and, therefore, in determining such damage, the entire cost-plus contract should be considered and defendant given credit for whatever labor was performed at the rate contemplated by the contract. Mays v. Hartman, 81 Ohio App., 408.

For these reasons, we are' of the opinion that the judgment of the Court of Common Pleas should be affirmed. '

Judgment affirmed.

Matthews, P. J.,- and Hildebrant, J., concur in the syllabus, opinion and judgment.

Ross, J.,

dissenting. I dissent from the conclusion and judgment of the majority of the court, for the reason that I cannot conceive how a plaintiff can logically assert that an accord and satisfaction, which is a defense to a counterclaim of the defendant, may be considered ineffective as to his claim against the defendant, when such accord and satisfaction applies to all matters in controversy between the parties.

It is also difficult for me to find a trial judge guilty of abuse of discretion in refusing, the plaintiff the right to recede from a position in which the plaintiff relies upon such accord and satisfaction, when it appears that reliance upon it is not to his interest.

I think the judgment of the Municipal Court should be. affirmed.


author: Doyle, P. J.

text:
    The State of Ohio, Appellee, v. Jackson, Appellant.
    (No. 3904
    Decided April 12, 1948.)

      Mr. Alva J. Russell, prosecuting attorney, and Mr. Jackson B. Morris, for appellee.

      Messrs. Moyer & Benedict, for appellant.
   Doyle, P. J.

David Jackson was indicted by the grand jury of Summit county and charged in two separate counts with the crime of incest with 'his daughter Jennie Lee (a juvenile). Accompanied by counsel, he was arraigned in the Court of Common Pleas, and there entered a plea of not guilty. The record shows no objections to the form of the indictment.

Subsequently, the case was tried to a jury, which returned a verdict of guilty on each count in the indictment. Following the overruling of a motion for a new trial, he was sentenced to the penitentiary, where he is now confined. The convict has now appealed to this court on questions of law.

It is claimed that ‘ ‘ The court erred in overruling the defendant’s motion to quash the second count of the indictment. ”

It appears that, following the impaneling of. the jury, counsel for the defendant orally moved the court to quash the second count in the indictment, and stated as his reason that it is bad on the ground of duplicity. The court overruled .the motion.

This count is in part as follows: “That the said David Jackson, * # * being then and there a married man, to wit, being then and there married to one Beatrice Jackson, did, on numerous occasions, between the 6th day of December, 1944, and the 6th day of December, 1946, commit adultery with Jennie Lee Jackson, by then and there having sexual intercourse with the said Jennie Lee Jackson, the said Jennie Lee Jackson being then and there the daughter of the said David Jackson, as the said David Jackson, and the said Jennie Lee Jackson, then and there well knew

The complaint in the instant case is similar to that in Barnhouse v. State, 31 Ohio St., 39 (decided in 1876), in which the Supreme Court dismissed the prisoner after conviction because the single charge in the indictment for incest upon which he was tried was regarded as having charged several offenses (and therefore bad for duplicity), in that it alleged “the criminal act to have been committed continuously through a specified period of years.”

After this and other decisions of a like character, the Supreme Court in 1925 commented as follows: “The entire subject of duplicity in criminal pleading is for the most part involved in technicalities calculated to serve persons accused of crime in their efforts to escape by technicalities much more than it is calculated to aid in promoting substantial justice.” State v. Peters, 112 Ohio St., 249, at p. 262, 147 N. E., 81.

Statutes now extant (Section -13439-10, General Code, and others) prevent the perversion of justice which seems so apparent in the Barnhouse case, cited above.

Section 13439-11, General Code, provides:

“The accused shall be taken to have waived all defects which may be excepted to by a motion to quash or a plea in abatement, by demurring to an indictment, or pleading in bar or the general issue.”

Section 13437-28, General Code, provides:

“No indictment * * * shall be quashed, * # * or motion to quash be sustained, * * * nor shall any conviction be set aside or reversed on account of .any defect in form or substance of the indictment # * *, unless the objection to such indictment * * *, specifically stating the defect claimed, be made prior to the commencement of the trial, or at such time thereafter as the court shall in its discretion permit.”

Thes'e statutes are in pari materia, and are controlling in the case under review. When read together, they mean that the motion to- quash must be made not only prior to the commencement of the trial, but also prior to pleading the general issue, unless the court, at a later time, in its discretion, will entertain such a plea.

The record before us shows (1) a plea of not guilty; (2) no request to withdraw the plea and motipn to quash; (3) the impaneling and swearing of the jury .(at which time the trial commenced and the defendant was placed in jeopardy); and (4) the. oral motion to quash the indictment immediately prior to the presentation of the case to the jury.

It is our conclusion that the court did not err, either by abuse of discretion or otherwise, in- its refusal to sustain the motion.

See 21 Ohio Jurisprudence, Indictment and Information, Section 133, and cases therein cited.

It is further claimed that the court erred in permitting two other daughters of the-defendant to testify to the defendant’s conduct toward them. One testified that her father had sexual intercourse with her on various occasions when she was of about the age of the prosecutrix (twelve to thirteen years). The-other testified that her father had asked her to submit ‘to sexual intercourse, but that she had repulsed him.

It may be tersely stated that, in criminal prosecutions, motive, is always relevant. “Men do not ordinarily commit grave crimes unless there is, in their minds, a motive strong enough to overcome the natural repugnance against crime and the fear of punishment which usually follows detection.” Son v. Territory of Oklahoma, 5 Okla., 526, 49 P., 923, quoted in I Wigmore on Evidence (3 Ed.), Section 118.

It has long been recognized that, since specific types of emotion or passion in persons are likely to lead to-the doing of specific acts, the presence of such emotion or passion in a person charged with crime prior to the time of the crime, has an evidential bearing as to the existence of the same emotion or passion at the time in question. When incest is charged on trial, the use and purpose of such evidence is to .show an unnatural sexual desire, at the time charged, as indicating an act of intercourse, and thus the evidence indicates the quality of degenerate and perverted emotion possessed' by the person charged with the crime. II Wigmore on Evidence (3 Ed.), Section 400.

There is authority in this state which holds that such evidence is competent in cases where the various acts of incest are all with the same person.

“In sexual crimes with consent, including incest, other and similar adulterous or licentious acts or conduct by the defendant toward the prosecutrix, whether prior or subsequent to the, date of the specific act charged in the indictment, are, if not too remote, admissible for the purpose of showing the adulterous or incestuous disposition of the defendant toward the "prosecutrix and the illicit and continuous sexual relations existing between them.” State v. Reineke, 89 Ohio St., 390, 106 N. E., 52, L. R. A. 1915A, 138.

The principles of evidence applied to the above case may be likewise applied to the instant case. The evidence is not at all admissible for the purpose of raising a presumption of guilt on the hypothesis that a man who commits one crime will probably commit another, but for the sole purpose of showing a passion, an emotion, a degeneracy, of exactly the same type prompting the commission of the offense laid in the indictment. See Brown v. State, 26 Ohio St., 176.

The separate acts of incest by the defendant with his several daughters are “so related to the offense for which the defendant is on trial that they have a logical connection therewith and-may reasonably disclose a motive.” State v. Moore, 149 Ohio St., 226. It is true that, the evidence tends to prove habitual moral degeneracy and lascivious conduct toward persons other than the prosecuting witness, but the same filial relationship exists between these persons and the defendant, as exists between the prosecuting witness and the defendant — father and daughter. It is this relationship in the case at bar ’which marks the gravamen of the offense and con'stitutes the “logical connection” between the acts of incest with different persons.

Of academic interest is the cáse of Barnett v. State, 104 Ohio St., 298, 135 N. E., 647, 27 A. L. R., 351. This case, however, is not dispositive of the question here, because evidence of like acts of sodomy upon children other than the prosecuting witness was there held competent on the theory of “identity,” and not on the theory of motive, as evidenced by the syllabus in the case.

The latest pronouncement in this state on the rules of evidence here under discussion appears in State v. Moore, supra, in the following language: “1. The like acts or other acts which may be shown against a defendant in a criminal case, within the contemplation of Section 13444-19, General Code, are acts of a character so related to the offense for which the defendant is on trial that they have a logical connection therewith and may reasonably disclose a motive or purpose for the commission of such offense.” The statute cited (Section 13444-19, General Code) is declarative of the common law heretofore discussed in this opinion.

It is our conclusion that, in the case now before us for decision, the evidence was competent for the purpose of showing motive, and that the trial judge properly charged the jury on that question.

Examination has been made of the other errors claimed, and we find no error to exist of a'prejudicial character. State v. Petro, 148 Ohio St., 473.

The judgment is affirmed.

Judgment affirmed.

Stevens and Htjnsicker, JJ., concur. '


author: Hildebrant, J.

text:
    The Gemco Engineering & Manufacturing Co., Inc., Appellant, v. Henderson et al., Appellees.
    (No. 6791
    Decided October 20, 1947.)

      Mr. James H. Cleveland and Mr. Truman A. Herron, for appellant.

      Messrs. Long & Bloom and Mr. Frank Zugelter, for appellees.
   Hildebrant, J.

The court is required here to determine on trial de novo the respective rights and obligations of the parties in two inventions and patents thereof made by defendant Henderson while in the employ of the plaintiff.

Plaintiff claims complete title and ownership of the inventions and patents by virtue of a contract of employment to invent, and, in the alternative, full shop rights to use, manufacture and sell.

Henderson denies any right of ownership in the plaintiff to the inventions and patents except a bare shop right to use the first invention in the course of its own business.

Plaintiff seeks a declaration of its rights and coercive relief appropriate to perfecting its title and ownership.

As in all such cases, a decision depends upon the facts to be found from the evidence.

The burden of proof - is upon the plaintiff.

As to proof of a contract of employment to invent, bringing tbe case within the rule laid down in Standard Parts Co. v. Peck, 264 U. S., 52, 68 L. Ed., 560, 44 S. Ct., 239, 32 A. L. R., 1033, the record reveals a shárp eonflict in the' evidence and the court has no difficulty in finding that the burden of proof resting on the plaintiff has not been met. We are, therefore, relegated to a consideration of shop rights, if any, and the scope thereof to be determined sfrom the entire situation of the parties, including the nature, of the employer’s business, the character of the invention involved, the circumstances which created them, and the relation, conduct and intention of the parties. See Flannery Bolt Co. v. Flannery, 86 F. (2d), 43.

In September 1945, plaintiff company was in a period of transition from the manufacturing of war materials to peace-time products, including a “utility trailer,” and was seeking new products to utilize the substantial facilities of its plant to a better advantage. Henderson, on the pay roll of another company at $100 per week, was seeking 'to- exploit commercially a patented invention of a trailer hitch, owned jointly' by Henderson and two others. He succeeded in interesting the plaintiff in the adaptation of the “Henderson Hitch” to plaintiff’s utility trailer and spent all his time from-September 1945, while still on the other pay roll, until November 1945 assisting in plaintiff’s plant in conjunction with the plaintiff in adapting the “hitch” to the “utility trailer,” and further, in the development of a “jeep wagon” with which to utilize the “hitch” in connection with a “jeep.” That development became,,assured during the month of November 1945, and, on November 22, 1945, Henderson became an employee of the plaintiff at $75 per week. Plaintiff claims that the oral agreement of employment entered into between the parties at that time was for Henderson to “dream up new ideas” for plaintiff in its plant and was tantamount to an employment to invent. Henderson denies this specifically and claims he had no regular duties, but was to further the manufacture and the adaptation of his “hitch” to plaintiff’s trailer.products and to demonstrate the same, which he subsequently did in conjunction with other employees of the plaintiff, both within and without the plaintiff’s plant.

While so employed and early in January 1946, Henderson, noting the time involved in mounting tires in plaintiff’s plant, volunteered to construct a tire mounter and received permission and co-operation of plaintiff and labor and material to so do'. The model produced was a success and having apparent commercial value was exhibited to, among others, representatives of.the Standard Oil Company. During the discussions and exhibitions of the tire mounter, it became apparent to all parties that a tire demounter would be of even more commercial value than a mounter and it was suggested to Henderson that he try to invent a demounter. The evidence is in conflict as to who first conceived the idea of a demounter.

Plaintiff caused a patent search to be made by its own attorneys on the mounter. Their report being unsatisfactory to Henderson, he consulted a patent attorney of his own choice.

In the meanwhile, Henderson was devoting some of his time working on a demounter and received some aid and assistance in the plaintiff’s plant.

Shortly after consulting his own patent attorney, Henderson ceased all work on a demounter in plaintiff’s plant and removed the model mounter and continued his work on .the demounter in his home. The evidence is in conflict as to any help or connection on the part of plaintiff with the work in Henderson’s home.

Thereafter, Henderson assigned to defendant Kavel a 30 per cent interest in his inventions and patent applications.

In April 1946, Henderson’s salary was raised to $100 a week.

No agreement subsequent to the oral contract of employment was made by the parties, although, after the model tire mounter was completed, the parties were in more or less constant negotiation looking to an agreement, and, after Kavel came into the picture, both parties attempted by their conduct to indicate claims of ownership of the inventions.

Also, there seems to be a conflict as to whether the demounter is an attachment on the mounter or a separate invention, and as to changes in the model mounter.

On this state of-the record, the case of United States v. Dubilier Condenser Corp., 289 U. S., 178, 77 L. Ed., 1114, 53 S. Ct., 554, 85 A. L. R., 1488, would seem to be decisive of the case at bar. In that case, at page 188, it is stated:

“The reluctance of courts to imply or infer an agreement by the employee to assign his patent is due to a recognition of the peculiar nature of the act of invention, which consists neither in finding out the laws ■of nature, nor in fruitful research as to the operation of natural laws, but in discovering how those laws may be utilized or applied for some beneficial purpose, by a process, a device or a machine. It is the result of an inventive act, the birth of an idea and its reduction lo practice; the product of original thought; a concept demonstrated to be true by practical application or embodiment in tangible form. Clark Thread Co. v. Willimantic Linen Co., 140 U. S., 481, 489; Symington Co. v. National Castings Co., 250 U. S., 383, 386; Pyrene Mfg. Co. v. Boyce, 292 Fed., 480, 481.

‘ ‘ Though the mental concept is embodied or realized in a mechanism or a physical or chemical aggregate,, the embodiment is not the invention and is not the subject of a patent. This distinction between the idea and its application in practice is the basis of the rule-that employment merely to design or to construct or to devise methods of manufacture is not the same as employment to invent. Recognition of the nature of' the act of invention also defines the limits of the so-called shop-right, which shortly stated, is that where-a servant, during his hours of employment, working with his master’s materials and appliances, conceives- and perfects an invention for which he obtains a patent, he must accord his master a non-exclusive right to practice the invention. McClurg v. Kingsland, 1 How., 202; Solomons v. United States, 137 U. S., 342; Lane & Bodley Co. v. Locke, 150 U. S., 193. This is an application of equitable principles. Since the servant, uses his master’s time, facilities and materials to attain a concrete result, the latter is in equity entitled to use that which embodies his own property and to duplicate it as often as he may find occasion to employ similar appliances in his business. But the employer in such a case has no equity to demand a conveyance of the invention, which is the original conception of the employee alone, in which the employer had no part. This remains the property of him who-conceived it, together with the right conferred by the-patent, to exclude all others than the employer from the accruing benefits. These principles are settled as respects’ private employment. ’ ’

It appearing from the record that Henderson was fully aware of plaintiff’s need for new items to manufacture, aild that plaintiff’s interest in the mounter went beyond the mere use for mounting tires in its own plant arid extended to the manufacture and commercial exploitation of the same, the scope of any shop right therein is determined by such situation existing between the parties here.

We, therefore, conclude that title to the inventions and patents is in Henderson, subject to any lawful assignment thereof, and that' plaintiff has a nonexclusive shop right in both the tire-mounter and demounter inventions, or the combined invention of the two, coextensive with its business requirements, to make, use .and sell the same.

A decree may be presented accordingly.

Decree accordingly.

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


author: By the Court.

text:
    Walton, Appellee, v. Hudson, Appellant.
    (No. 1954
    Decided December 3, 1947.)

      Messrs. Hollencamp & Hollencamp, for appellee.

      Messrs. Jacobson & Durst, for appellant. ■
   By the Court.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Montgomery county, affirming a judgment in favor of the plaintiff rendered by the Municipal Court of Dayton.

The defendant,, appellant herein, assigns as error that the judgment is not sustained by any evidence, is contrary to the manifest weight of the evidence, and is contrary to law.

The plaintiff’s action was based on a breach of implied warranty of authority. The plaintiff is a real estate broker and claims damages based on a contract to find a purchaser for a residence which stood in the-name of the Jonardson Company of which the defendant, John R. Hudson, was vice-president. The contract was signed: The Jonardson Company, per J. R. Hudson, D. D. S. It clearly appears that at the time the contract was signed, Hudson did not have authority from the company to offer the property for sale on the terms stated in the contract. It is well established in Ohio that a person who contracts as agent, without having in fact authority to do so, is personally responsible to those who, in ignorance of his want of authority, contract with him, on the theory that he impliedly represents that he has authority to make the contract, when he has not. Farmers’ Co-operative Trust Co. v. Floyd, 47 Ohio St., 525, 26 N. E., 110, 12 L. R. A., 346, 21 Am. St. Rep., 846; Jackson v. Watkins, 128 Ohio St., 407, 409, 191 N. E., 483.

In the case at bar the defendant stated that at the time he signed the contract he informed his broker, the plaintiff herein, that it would be necessary for him to secure the approval of the corporation. The plaintiff, and his associate broker who was acting for the prospective purchaser, denied that the defendant made this statement at the time the contract was signed. A like contention was made in the case of Jackson v. Watkins, supra, wherein the court, in commenting on that phase of the case on page 409, stated “whether he told Watkins that he had no authority to sign the agreement was a question of fact for the jury to determine. We are unable to follow the mental process of Jackson who testified that, while he signed this agreement, he had no authority to do so at the time he signed it. ’ ’ In the case at bar, on this issue there is a direct conflict in the testimony.

The evidence shows that the defendant signed the acceptance clause in the contract rather than the offer. Spaces were left blank in the offer clause which were afterwards filled in by the plaintiff. There is a direct conflict in the evidence as to whether the plaintiff properly filled in the blank space before the offer was-signed by the purchaser.

After a consideration of all the evidence the court can not find that the judgment of the court in resolving the issues of fact in favor of the plaintiff is contrary to the manifest weight of the evidence.

The plaintiff seeks damages by reason of the failure-of the Jonardson Company to complete a sale of the residence property which by the terms of the contract was offered for sale for $20,000 cash. The plaintiff secured a purchaser who signed the agreement to purchase the property on the terms stipulated. The sale was not consummated. Hudson claims that at the time he signed the offer he made the verbal statement that his offer must be accepted within five days. The plaintiff and his associate both deny that a time limitation was placed upon the acceptance of the offer. The contract was dated December 15, 1939. On or about December 22, 1939, the plaintiff informed the defendant that he had secured a ■ purchaser. The defendant stated that the deal could not be consummated before he left for the south where he expected to sojourn for several weeks. The plaintiff informed the defendant that the closing date of the transaction was January-20, 1940. The record does not disclose thaf the plaintiff and defendant came to any definite conclusion respecting the transaction on that date. Within a day or two the defendant left the city and returned on or about January 12,1940. Within a few days thereafter the plaintiff presented the signed contract to the defendant who at that time stated that the deal could, not be consummated as he had no authority from the corporation to offer the property for sale at that price.

Before the plaintiff can recover damages for breach of implied warranty of authority plaintiff must prove that he obtained a purchaser who was ready, willing and able to purchase the property on the terms stipulated. 6 Ohio Jurisprudence, 216; Pfanz v. Humburg, 82 Ohio St., 1, 91 N. E., 863, 29 L. R. A. (N. S.), 533; Spengler v. Sonnenberg, 88 Ohio St., 192, 199, 102 N. E., 737, 52 L. R. A. (N. S.), 510, Ann. Cas. 1914D, 1083. The evidence shows that immediately after the purchaser, Meta Fisher, signed the contract, an application was made for a loan at the Third National Bánk & Trust Company, Dayton, Ohio. The loan was granted and the bank proposed to make the loan on a piece' of property then owned by Meta Fisher and the property involved in the sale. The evidence shows further that Fisher was the owner of the property in which she-resided and which she expected to dispose of. Rupert,, the loan officer of the bank,'testified that the loan had been granted and that the bank was prepared to close' the deal on January 20, 1940. The plaintiff contends, that a $20,000-bank check was tendered to the defendant which he refused. The defendant denies that a tender was made. Rupert testified that no check had been issued and no tender had been made. We regard this matter as immaterial as under the circumstances plaintiff was not required to make a tender.

Do the facts presented show that the plaintiff had produced a purchaser who was ready, willing and able to buy on the terms stipulated? The readiness and willingness of Mrs. Fisher may reasonably be inferred from the fhct that she applied to the bank for a loan in order to consummate the deal. Do the facts show that she was able to buy? The ability to buy refers to-the financial ability of the purchaser-. The general rule is well established; however, in this state we find few authorities which determine the degree of proof' required to establish financial ability of the purchaser. The most recent authority is C. O. Frick Co. v. Baetzel, 71 Ohio App., 301, 47 N. E. (2d), 1019, in which it was-held that: “a prospective buyer meets the legal standard of ‘ready, willing and able’ to buy, although he-does not have the cash in hand, if he is able to command the necessary funds to complete the purchase-within the time allowed”by the offer.’! A number of authorities are cited in the opinion from'which we-quote at length:

“There are cases which hold that a proposed purchaser can be shown to'be ‘ready, willing and able-’ to-buy oidy by proof that ‘he, at the time he was presented as a purchaser of the property, had then under his-, -control for immediate payment the amount of the- purchase money in cash.’ Chitwood v. White, 18 Ala. App., 331, 92 S., 84; Reynor v. Mackrill, 181 Iowa, 210, 164 N. W., 335.

“Other cases hold, and we think correctly, that all that need be shown to meet the required degree of proof is that ‘he need not have all the money in his immediate possession or to his credit at a bank, if he is able to command the necessary funds to close the deal within the time required.’ Laack v. Dimmick, 95 Cal. App., 456, 273 P., 50. Although the proposed purchaser may not have in hand all the necessary cash, ‘the ability to command the necessary funds to close the deal’ must be shown to exist at the time the offer is made. Ramsdell v. Krehmke, 95 Cal. App., 195, 272 P., 333; McCabe v. Jones, 141 Wis., 540, 124 N. W., 486; Hays v. Goodman-Leonard Realty Co., 146 Miss., 766, 111 S., 869.

“On the other hand, the cases uniformly hold that ‘a proposed purchaser cannot be said to be able to purchase when he is dependent upon third parties who are • in no way bound to furnish the funds to make such purchase.’ Pellaton v. Brunski, 69 Cal. App., 301, 231 P., 583. See, also, McCune v. Badger, 126 Wis., 186, 105 N. W., 667; O’Brien v. Gilliland & Armstrong, Exrs., 4 Tex. Civ. App., 40, 23 S. W., 244; Massie v. Firmstone, 134 Va., 450, 114 S. E., 652; and note to 1 A. L. R., 528.”

In 12 Corpus Juris Secundum, 193, it is stated:

“Aside from immediate cash payments, the ability of a purchaser is not to be judged exclusively with reference to money in his possession or to his credit in a bank; consideration should also be given to his assets, credit, financial rating, enforceable agreements for loans, and anything else indicating ability or lack of ability on his pail to command the requisite funds at the required time.”

In 2 Mechem on Agency (2 Ed.), 2031, it is stated:

“What constitutes financial readiness or ability in these cases cannot be determined by any hard and fast rule. It is, obviously, a very different question from that of solvency. Much must depend upon the terms prescribed in each case, and a man must be deemed pecuniarily able and ready when he has made the preparations and arrangements which are in accordance with safé and conservative dealing.”

A lengthy annotation dealing with this proposition is found in 1 A. L. R., 528. The authorities are not in agreement as to the degree of proof required to show financial ability to pay. As was stated in C. O. Frick Co. v. Baetzel, supra, some authorities require the purchaser to have in his possession the funds necessary to close the deal at the time the contract is entered into. However, we believe that an investigation of the authorities cited in works referred to shows that this rule has been relaxed to the extent that all that is required is that the purchaser be able to command the necessary funds to close the deal on the date agreed upon.

The case of McCabe v. Jones, 141 Wis., 540, 124 N. W., 486, is frequently referred to as supporting the more liberal rule. In that case the court held:

“To entitle a real-estate broker to recover his com-mission on a sale which his principal refused to carry •out he need show only that he procured a purchaser who was ready, willing, and pecuniarily able, within ■the time fixed, to take and pay for the property.

“ ‘Pecuniarily able’ in such connection means merely able to command the necessary money to close the •deal on reasonable notice or within the time limited ■by the vendor.”

In Rosenblatt v. Bergen, 202 App. Div., 220, 222, 195 N. Y. Supp., 276, the court held: “All that is necessary is that they shall have the money necessary to :make the payment required when the contract is signed •and have sufficient available assets and have made ar•rangements to realize on those assets so as to complete •on the closing.”

See, also, Casey v. Fritz Carlton Hotel Co., 254 Mass., 223, 150 N. E., 162; Prugh v. Tyrrell, 208 Mo. App., 582, 235 S. W., 143.

The evidence in this case shows that the purchaser had sufficient assets, had secured a loan, had made all necessary arrangements to realize on those assets, and had the money in hand to consummate the deal on .January 20, 1940. We are of the opinion that under the facts in this case the plaintiff produced a purchaser who was ready, willing and able to buy on the' terms agreed upon and was financially able to close the •■deal on the date stipulated.

Since the plaintiff, appellee herein, has not filed a cross-appeal, we cannot consider the question, whether the evidence would have warranted a judgment in a ..•greater amount.

On the factual issues in this case, we cannot say that the judgment of the trial court was against the manifest weight of the evidence; neither was it.contrary to law.

Judgment affirmed.

Wiseman, P. J., Miller and Hornbeck, JJ., concur.


author: Wiseman, P. J.

text:
    The State of Ohio, Appellee, v. Stallings, Appellant.
    (No. 1939
    Decided November 29, 1947.)

      Mr. Mathias H. Hech, prosecuting attorney, and Mr. Robert Schroeder, for appellee.

      Mr. Thomas B. Talbot and Mr. J. H. Patricoff, for appellant.
   Wiseman, P. J.

This is an appeal on questions of law from a judgment of'the Common Pleas Court of Montgomery county, which rendered judgment on the verdict in a case in which the defendant was indicted, tried and convicted of murder in the second degree.

The defendant, appellant herein, assigned as error: That the verdict is contrary to law; that the verdict is against the jnanifest weight of the evidence; that the trial court failed to modify the verdict in accordance with the evidence; that the evidence did not warrant a conviction of murder in the second degree; and other errors apparent on the face of the record. The several errors assigned are considered together since the principal question for determination is whether there was 'sufficient evidence to warrant a conviction of murder in the second degree.

The defendant contends that the evidence does not show him to be guilty of the crime charged and for which he was convicted but proves the lesser crime of manslaughter in the first degree. The contention is made that the trial court, under the provisions of Section 13449-1, paragraph 4, General Code, should have modified the verdict accordingly and, also, that this court should modify the verdict and pass sentence on the verdict as modified. Section 13459-6, General Code.

Is the evidence sufficient to support the verdict? Under a plea of not guilty the defendant attempted to show that he shot and killed the decedent in self-defense. Apparently the jury found that the evidence was insufficient to support such defense. The state at all times carried the burden to prove- the defendant guilty of the crime charged beyond a reasonable doubt. There is ample evidence to support the verdict.

The evidence shows that on the afternoon in question the defendant, the decedent, Rufus Wright, and two other men came out of a cafe and entered upon a property in the rear of the cafe where they engaged in shooting craps. An argument ensued and the occupant of the property ordered them away. Thereupon they walked down an alley, crossed the street and entered a vacant lot. The evidence shows that the defendant claimed that the decedent had taken his money in the crap game. The decedent was unarmed and at the time the shot was fired was at least ten feet from the defendant. There is evidence from which the conclusion may be drawn that immediately before the shooting the decedent was in the act of walking away from the defendant. The bullet which killed the decedent entered the breast on the left side and lodged in the ribs on the right side. This fact lends support to the contention that the decedent was not facing or approaching the defendant at the time the shot was fired. On the other hand, it supports the. contention that the deeerdent was in the act of walking away and had turned slightly to look toward the defendant at the time the shot was fired. Immediately after firing the shot the defendant threw the gun away, left the scene of the crime, and did not return to his home. He was apprehended the following day at the home of a' friend.

On cross-examination the defendant testified as follows :

“Q. You did intend to shoot him through, didn’t you? A. Yes, sir.

* * * # *

“Q. It was your-purpose to shoot? A. Yes, sir.

# * * * #

“Q. Then the first time and the first thing you had trouble with Rufus about was over the thirty-five cent bet? A. Yes, sir.

“Q. And you won that bet? A. Yes, sir, I did.

“Q. And you have gambled before, haven’t you? A. Yes, sir.

“Q. Quite a bit? A. Yes, sir.

“Q. And when you win a bet you want to collect it, don’t you ? A. When I win I like to collect it.

“Q. And Wright didn’t pay you, did he? A. No, sir, be didn’-t.”

Whoever purposely and maliciously kills another is guilty of murder in the second degree. Section 12403, General Code. There is evidence from which the jury could conclude that the defendant purposely killed the decedent. Proof that a killing was done purposely may be deduced from the attendant circumstances, the type of instrument used, the manner of its use and its tendency to destroy life when used in that manner. In the case at bar the evidence shows that the defendant used a .32 caliber revolver, a deadly weapon. The jury could reasonably deduce from the facts proved that the killing was done purposely and willfully.

Was the killing malicious? Only simple malice is required to be shown in murder in the second degree, and it may be implied from the facts proved. Simple malice may be presumed by proof of cruel acts and inhuman and atrocious conduct which indicates a reckless disregard of human life, although a deliberate design of taking life is absent. When a killing under such circumstances is' established ■ our law raises the presumption of simple malice or such malice as under our statute would constitute murder in the second degree. Lindsey v. State, 69 Ohio St., 215, 69 N. E., 126; 21 Ohio Jurisprudence, 39, 60. Under the facts in this case simple malice would be presumed.

We can not find that the verdict is against the manifest weight of the evidence; neither is the verdict contrary to law. The court can not find in the evidence sufficient support for an order modifying the verdict.

We are of the opinion that the defendant had a fair trial arid that substantial justice has been done.

Finding no error in the record, the judgment is affirmed.

Judgment affirmed.

Miller and Hornbeck, JJ., concur.


author: Ross, J.

text:
    Kunkel, Appellant, v. The Cincinnati Street Ry. Co., Appellee.

      (No. 6920
    Decided March 8, 1948.)

      Messrs. Marble & Vordenberg, for appellant.

      Mr. Leo J. Brumleve, Jr., for appellee.
   Ross, J.

This is an appeal on questions of law from a judgment of the Court of Common Pleas of Hamilton county in favor of the defendant, entered in conformity to a verdict.

The action was instituted to recover damages for personal injuries suffered by plaintiff when a truck driven by him collided with a streetcar operated by an employee of the defendant.

The plaintiff alleges in his amended petition that he was backing the truck out of a building maintained by defendant as the upper terminus of an inclined plane when one of the streetcars of defendant on its way into such building struck the truck and caused the injuries of which complaint is made. The plaintiff charges that defendant was negligent in that it operated such streetcar at such time and place at a speed greater than was reasonable and proper and which would permit stopping such streetcar in the assured clear distance ahead, without keeping a proper lookout and without any warning of its approach, “all in violation of the laws of Ohio and the ordinances of the city of Cincinnati then in effect,, and particularly of ordinance No. 74-57, which is as follows: * *

Then the plaintiff quoted certain ordinances of such city, applicable to the operation of streetcars upon the “streets and highways” of the city.

It is alleged further that such negligence of the defendant was the proximate cause of injuries to plaintiff, which are detailed at length.

In the answer of defendant, it is admitted the collision occurred “at the Mt. Adams incline of said defendant.” Otherwise the answer is a general denial.

Plaintiff advances as his first assignment of error that the verdict and judgment are manifestly against the weight of the evidence. There is evidence that the plaintiff backed the truck into the streetcar, which had stopped, and also evidence that the streetcar struck the truck. There is some evidence that the defendant was negligent and also that the plaintiff was guilty of contributory negligence.

In an appeal on questions of law, this court cannot retry the facts or render an independent judgment thereon. Bishop v. East Ohio Gas Co., 143 Ohio St., 541, 56 N. E. (2d), 164. Nor is it justified in reversing a judgment upon the weight of the evidence unless it “be fully and clearly satisfied from an examination of all the evidence and of the whole record, that the judgment is in fact unsupported by, or against the manifest weight of, the evidence. And the court will not be thus satisfied unless there projects from the record some fact or circumstance indicating that the jury lost its way and went in the wrong direction in reaching its verdict resulting in error and injustice shocking to the senses and to the conscience of the court, and clearly showing that the jury misapprehended the facts or were influenced by sympathy, bias, prejudice, wilful disregard of duty, perversity, corruption or other improper motives. In other words there must be impressed upon the evidence a status which shows that the conclusion of the jury is unreasonable, improbable .and illogical to such a degree that it is possible to say that the testimony affords no reasonable foundation for the verdict or findings, or that unbiased, unprejudiced minds could not, from the evidence, have reached the conclusion which was reached by the jury or the trial court.” 2 Ohio Jurisprudence, 755 et seq., Section 663.

It cannot be said that the record justifies a reversal when those tests are applied to that privilege.

The second assignment of error deals with the action of the trial court in excluding evidence through which plaintiff sought to impeach witnesses for the defendant. In one instance the plaintiff sought to show that a witness for the defendant had stated that she could not testify because she had a relative employed by defendant. She.denied she had such relative and that she made such statement. Her statements were averred to have been made over the telephone.

Certain requisites attach to the privilege of impeachment. These- are well stated as follows, in 42 •Ohio.Jurisprudence, 408, 411, Sections 398 and 400:

“To lay a proper foundation for the impeaching evidence, the witness must be asked as to his having-made the alleged contradictory statement at a particular time and place and to a particular person. The question whether he has ever said, so at any time •or place is not sufficient. It is not sufficient merely -to direct the witness’s attention to the place, date, and persons involved, unless he is also asked, by a question using the substance of his own language, whether he said that which is intended to be proved. Generally, there is an insufficient foundation laid where the ■examining- counsel fails to ask concerning a definite statement, fails to mention the place, and leaves a wide scope as to the time when .the statement was supposed •to have been made. ”

The matter involved in the impeachment must relate directly to an issue involved or tend to show bias and prejudice on the part of the witness. 42 Ohio Jurisprudence, 420, Section 411. See, also, O’Hara v. Cincinnati Street Ry. Co., 68 Ohio App., 7, 36 N. E. (2d), 823.

The foundation claimed by plaintiff to have been laid for impeachment of this witness appears from the record to be as follows:

“Q. Now Miss Cassity with whom do you live? A. With whom do I live?

“Q. Yes. A. My sister.

“Q. Your sister. Who is the relative of yours that is connected with the street railway company? A. A relative of mine?

“Q. Yes. A. I don’t have a relative connected with the street railway company.

“Q. You don’t. Didn’t you tell Mr. Kunkel that you had a relative with the street railway company? A. 1 don’t have a relative connected' with the street railway company.

“Q. Did’you at that time? A. I did not at that time.

“Q. Now? A. No, I don’t have.

“Q. Now didn’t you tell Mr. Kunkel that? A. I wish I did have. No I don’t have a relative.

“Q. Didn’t you tell him you had a relative with the street railway company and you couldn’t let them down ?

A juror: We can’t hear.

“A. I didn’t tell Mr. Kunkel that I had a relative with the Cincinnati Street Railway' Company and I couldn’t let them down. I did not tell him that.'

“Q. You didn’t say that? A. No.”

It does not clearly appear from the record what was meant by “that time.” This examination was admitted without objection on the part of the defendant.

From the record it appears that the plaintiff sought to contradict the statements of the witness in the following manner:

“Q. Mr. Kunkel, I want to ask you also if you got in touch with the witness Miss Oassity? A. I did.

“Q. And did you discuss with her whether or not she had seen this-accident?

“Mr. Brumleve: That is improper, if your Honor please, and I object to it.

“The court: If you have not finished your question, the rule is you are permitted to finish the question and if it is wrong as to form the objection will be sustained. It will be sustained, after you have finished it.'

“Q. Mr. Kunkel, on the stand yesterday I asked Miss Oassity whether or not she made the statement to you that she was related to someone in the employ of the Cincinnati Street Railway Company and therefore she would not wish to testify for you. You may state. whether or not she made that statement.

“Mr. Brumleve: And I object unless the time and the place is mentioned, if your Honor please.

“The court: The objection is well taken.

“Q. Mr. Kunkel, when if at all did you have a conversation with her? A. Last fall, around the same time I was talking to Mr. Allen.

“Q. Do you remember what month that was in? A. I think around November.

“Q. Where did this conversation take place? A. In my home.

“Q. What? A. In my home.

“Q. Well, was she in your home? A. No, I was talking to her over the telephone.

“Q. Oh, over the telephone, I see. I will ask you whether or not she made the statement to you that she had a relative with the street railway company and therefore she conld not testify for you?

“Mr. Brumleve: I object.

“The court: I will sustain the objection.

“Q. In this telephone conversation did you ask to whom you were speaking?

“Mr. Brumleve: I object.

“The court: Objection sustained.

“Q. What conversation did you have or who did you ask for when you called?

“Mr. Brumleve: I object. .

“The court: Sustained.

“Q. Do you remember what telephone number you called? A. No, I do not.

“Q. Where did you obtain the number?

“Mr. Brumleve: I object to that, if your Honor please.

“The court: Sustained.

“Mr. Marble: Note my exception and I proffer as to the question whether or not she made the statement with respect to her being related to an employee of the street railway company, she said that she was related to an employee and therefore could not testify for him. That is all. ’ ’

It cannot be said that the trial court abused its discretion or committed error in strictly enforcing the rules applicable to impeachment and in refusing such evidence tending to impeach.

In another instance the motorman was on the stand when the following occurred:

“Q. Asa matter of fact there is a point tiere before you get to Monastery street where you can look in the barn, isn’t.there? A. (No answer).

“Q. Don’t you know? A. I don’t remember.

“Q. Didn’t you tell me that is the point where you looked and saw the car standing beside the track? A. No, I didn’t.

“Q. And didn’t you tell me that you then proceeded 'and you stopped at Monastery street and you picked up a passenger and there is this distance of about four hundred feet where you travel where you cannot see the barn at all. That from that time on you looked down at your switches and never looked up? A. That is not correct.

“Q. Didn’t you tell me that this whole thing happened because you thought you were following the, directions of the company and watching all three switches as you went along? A. I' don’t, remember saying it.

“Q. And didn’t you tell both Mr. Kunkel and myself that it was your fault? .

“Mr. Brumleve: I object.

“A. No, I did not.

“Mr. Brumleve: I object.

“Q. You deny that? A. No, I did not.

“Mr. Brumleve: I would like to see Mr. Marble become a witness in his own case. Did your Honor sustain the objection to the question.

“The court: Objection sustained as to the form of the question.”

The attempt to impeach is found in the record where the plaintiff attempted to contradict the witness as follows: ’

“Q. Mr. Kunkel, did you at any time since this accident get in touch with Luther Allen? A. Yes, I did.

“Q. The motorman? A. Yes, I did.

“ Q. Do eyou remember , about when that was and where you saw him? A. That was last fall, I can’t remember the month, but I was in his house.

“Q. And what was the purpose?

“Mr. Brumleve:- I object to the purpose.

‘ ‘ The ■ court: Sustained.

“Q. Did you have any conversation with him? A. Yes sir, I did.

“Q. Regarding the accident? A. I did.

“Q. And what did he say?

“Mr. Brumleve: I object if your Honor please.

“The court: Sustained.

“Mr. Marble: Having in mind his testimony yesterday that I .asked in the question if he didn’t make certain statements to Mr. Kunkel?

“The court: I am assuming that the objection here is as to the form?

“Mr. Brumleve: That is right.

‘ ‘ Mr. Marble: I merely asked him if he had a conversation with him and what he said.

“The court: That is not a prescribed form for impeachment under the objection and it, will be sustained.

“Q. I will ask you whether or not in a conversation with him anything was said by him as to how- or what caused this accident? A. Well, —

“Mr. Brumleve: I object again, if -the court please.

“The court: Sustained.

“Q. Did you inquire of him as to what he did?

“Mr. Brumleve: I object, if your Honor, please.

‘ ‘ The court: Sustained.

“Q. And what did he say?

“Mr. Brumleve: I object to that too.

“The court: Sustained.

“Q. Mr. Kunkel, what if anything did he say to you as to the operation of his car just prior to the accident?

“Mr. Brumleve: I object again.

“The court: Sustained.”

It cannot be claimed that this form of impeachment ■strictly meets the applicable requirements, nor can it be said the court committed error in requiring the plaintiff to adhere rigidly to the rule. It is -only fair, when the object is to discredit a witness and show his or her testimony is not wo'rthy of belief, that both the foundation and impeachment should be specific ¿s to subject matter, time and place. The action of a trial court in requiring strict compliance with such specifications cannot be subjected to too severe criticism. A large discretion must be reposed in the trial court in enforcing the rules strictly or liberally. It is not a question whether the reviewing court would have admitted the evidence, but rather whether the trial court excluded evidence competent and admissible under the rules of evidence, to the prejudice of a party. It does not- appear that the trial court went to such latter extent in either instance.

The plaintiff claims there was error in the admission of certain city ordinances, offered by the defendant, governing the operation of streetcars upon' the streets of the city. The basis of this contention is that the area involved in this case and within which the collision occurred was not included in streets or within areas covered by the city ordinances. The difficulty with the position of the plaintiff is that in his petition he pleaded city ordinances applicable to city streets and offered these in evidence. It is true the defendant admitted the collision occurred “at the Mt. Adams incline of said defendant.” Even if this could be considered in connection with plats admitted in evidence as showing that the collision did not occur on a city street, still the plaintiff invited any error intervening by the admission of ordinances offered by the defendant applicable to city streets. 2 Ohio «Jurisprudence, 640, Section 593; Lester v. Leuck, 142 Ohio St., 91, 93, 50 N. E. (2d), 145.

A reading of the record does not clearly develop that the area involved in the action was the private property 'of the defendant. It appears to be conceded now that it was. It seems apparent that had this fact been clearly developed at the trial, the confusion as to applicability of city ordinances would have been eliminated. Certainly, the court would not have admitted such ordinances and charged upon them had the real situation been made apparent.

The plaintiff objects to the following portion of the general charge, to which emphasis has been added herein:

“Now ladies and gentlemen, you will examine the evidence in the case and determine under the burden of proof which I will later explain to you whether the defendant was negligent as that term has been defined, in any one or more respects as claimed by the plaintiff. If you find that the defendant was negligent in one or more of such respects by the degree of proof -which I will explain, then you must determine whether any such negligence was the proximate cause of any injury or damage to the plaintiff as I have explained that term to you and defined it.

“Now th.e mere fact that a collision occurred up there on this occasion, the mere fact that the plaintiff may have been injured as a result of such collision does not give the plaintiff the right to recover from the defendant. He must support these claims. He must show that the defendant was negligent, and if he does show that it was negligent in some respect as he claims, that such negligence was the proximate cause of his injuries such as he may have sustained. Now this burden is that he prove those claims of negligence and proximate cause by a preponderance of the evidence and by a preponderance of the evidence is meant the greater weight of the evidence. It does not necessarily mean that he is required to have the greater number of witnesses. It does mean that the jurors after considering all of the evidence, before the plaintiff can recover must find that the evidence in support of his claim outweighs in some degree the evidence which is contrary to his claim, as to any one of his claims. ' If the evidence as to his claims, or any of them, is equally balanced, then he cannot recover from the defendant and your verdict should be for the defendant. ’ ’

The trial court later charged:

“Now these issues of fact may be briefly stated to be — that is you must decide these issues which I will state in brief; first/was the defendant company, the Cincinnati Street Railway Company, negligent in any respect as claimed by the plaintiff, in any one or more of the respects claimed by the plaintiff? Secondly, if you find that the defendant company was negligent in one or more respects as claimed by the plaintiff, whether such negligence was the proximate v cause of any injuries or damage to the plaintiff as he ■claims.”

After the jury retired, certain questions were transmitted to the court which the jury wished answered. The jury was recalled and the court explained in answering its questions the portion of the charge which is subject to criticism. The court, in so explaining its previous charge, clearly and correctly stated the respective duties and rights of the parties and made it very plain that the plaintiff was entitled to recover if the evidence by the proper degree of proof sustained any claim of negligence alleged.

Taking all the charge into consideration and having in mind the latter emphasis upon the correct statement of the law, we cannot say that the jury was misled. A different situation is here presented than was involved in Bosjnak v. Superior Sheet Steel Co., 145 Ohio St., 538, 62 N. E. (2d), 305, and Westropp v. E. W. Scripps Co., 148 Ohio St., 365, 74 N. E. (2d), 340. See 2 Ohio Jurisprudence, 929, Section 767; Mansfield Public Utility & Service Co. v. Grogg, 103 Ohio St., 301, 302, 303, 133 N. E., 481.

Plaintiff claims the court erred -in stating to the jury that the area involved was outside the business-district in the city and, hence, the question of reduced speed was not involved. The plaintiff had invited any error in considering city ordinances applicable to-streets.

As hereinbefore noted, there was a dearth of evidence as to the character of the area involved. The plaintiff alleged negligence due to speed of defendant's streetcar, he pleaded the speed ordinances of the city of Cincinnati, which vary with the areas involved. If plaintiff was entitled to a charge on slower speed, it became incumbent upon him to introduce evidence showing the existence of an area calling for the slower speed. In the absence of such evidence, the court ted the right to infer the'' defendant was entitled to-the benefit of the faster speed, applicable to areas specified in the ordinances.

Other errors assigned by plaintiff have been considered, and in examining the basis for the charge of error, it does not appear that the action of the trial court was such as to demand a finding of prejudice to the plaintiff, requiring a reversal of - the judgment. The judgment is, therefore, affirmed.

Judgment affirmed.

Matthews, P. J., Ross and Hildebrant, JJ., concur in the syllabus, opinion and judgment.


author: Matthews, P. J.

text:
    McClain, Admr., Appellee, v. All States Life Ins. Co., Appellant.
    (No. 6906
    Decided February 9, 1948.)

      Messrs. Berry, McClain & White, for appellee.

      Messrs. Marble $ Vordenberg, for appellant.
   Matthews, P. J.

This is an action by the insured’s administrator to recover death benefits under a life insurance policy on the life of Lucille Spencer. Aften a trial to the court without a jury, the court found in favor of the plaintiff and rendered judgment in his favor. This is an appeal from that judgment.

Although the record shows that there was no doubt about the issuance of the policy and its terms, the policy was not surrendered at the time of filing proof of death, and it was not produced at the trial. The evidence shows that the failure to surrender or produce the’ policy resulted from the fact that it could not be found after the insured’s death.

(1) The policy contains an express provision to pay upon proof of death and “upon surrender of this policy and evidence of premium payments thereunder. ” It is urged that the surrender of the policy is a sine qua non to recovery.

We have been cited to no case so holding, and we have found none. However, we think the cases- construing provisions requiring production of the policy upon change of beneficiary bear some analogy. It seems to be uniformly held that, if the insured has complied in all other respects, the change of beneficiary will be effected where the policy is not produced because such production is beyond the power of the insured. 29 American Jurisprudence, 987. We follow that analogy and hold that surrender of the policy is not indispensable to recovery.

It should be said also that this policy does not in express terms make the surrender of the policy a condition precedent to recovery, and it seems to us that if an insurance company intended to make 'recovery dependent upon so insubstantial a condition, it should have so stated in positive language.

Inability to produce a negotiable instrument, transferable by delivery, is not fatal, and an outstanding nonnegotiable insurance policy contains no such threat to the obligor. Even when a negotiable instrument, transferable by delivery, is lost before maturity, and danger exists that it might be enforceable in the hands of an innocent transferee before maturity, the only •effect is to require indemnity against the risk as a ■condition of enforcement by the plaintiff who has lost it, and is, therefore, unable to surrender it. 34 American Jurisprudence, 616 et seq. If, however, a negotiable certificate of deposit is payable to order and has never been endorsed, it is enforceable without surrender or indemnity. Citizens’ National Bank v. Brown, 45 Ohio St., 39, 11 N. E., 799, 4 Am. St. Rep., 526. In that case, the court so' held in face of an express provision in the instrument that the maker would pay “on return of this.certificate.”

(2) The record contains testimony of witnesses to ■an affray between the insured and the beneficiary in which each struck the other. It contains also the hospital records showing that the insured was taken to the hospital immediately thereafter, where, upon examination, it was found that she was suffering from severe wounds. Her death resulted from these wounds. It is a fair inference that the beneficiary inflicted these wounds with some- kind of a pointed instrument.

Although the evidence tends to show that the insured struck the first blow, the nature of the wounds strongly tends to show that the beneficiary used excessive force with the intent to kill or to inflict great bodily harm. The trial court found for the plaintiff, and we are of the opinion that the evidence in itself was sufficient to justify the court in holding that the killing was intentional and felonious. If so, it barred the beneficiary from recovery and established a right to recover in the estate of the insured. Filmore v. Metropolitan Life Ins. Co., 82 Ohio St., 208, 92 N. E., 26, 137 Am. St. Rep., 778, 28 L. R. A. (N. S.), 675; 29 American Jurisprudence, 979.

(3) Over the objection of the defendant, the court admitted' in evidence the record of the case of State v. Willis, Jr., in which Willis, Jr., was indicted for unlawfully, purposely, and maliciously killing Lucille Spencer, which record showed that Willis, Jr., pleaded guilty to manslaughter and was sentenced to the Ohio State Reformatory. It is now urged that the admission of that record was error.

In view of the other evidence in this case, we are not convinced that the admission of the record, even though erroneous, would be so prejudicial as to require a reversal of the judgment. However, we do not find that the court erred in this respect. In 29 American Jurisprudence, 1112, it is said: “Where the issue is whether the beneficiai’y murdered the insured, the record of his conviction therefor is admissible in evidence in a suit on the policy, and is clothed with a prima facie presumption of verity.”

It is true that a conviction in a criminal prosecution is not competent in a subsequent civil action, because of a lack of identity of parties, etc.- However, on tehe issue in this case, whether the beneficiary intentionally and feloniously killed the insured, the third party, that is, the defendant herein, has no interest other than to be protected against double liability. It is liable to the beneficiary or the insured’s estate, and, if as between the insured’s estate and the beneficiary, the latter is concluded, the insurer is fully protected, and any evidence, that would be competent in an action between the insured’s estate and the beneficiary on the issue of which is entitled to the proceeds of the policy, should be and is admissible in this action against the insured.

The plea of guilty of manslaughter is not inconsistent with the other evidence that the killing was intentional and felonious. Manslaughter is a felony and pray involve an intentional killing.

(4) The court admitted in evidence the coroner’s inquest.- This is assigned as error. It is said that as the death of the insured was admitted, the only purpose in offering the coroner’s record was to show the cause of death, and that it was inadmissible for that purpose.

By Section 2855-10, General Code, • the coroner is expressly required to record the cause of death, and by Section 2855-11, General Code, courts are required to admit such records in evidence in both civil and criminal cases.

It is true that in State, ex rel. Dana, v. Gerber, 79 Ohio App., 1, 70 N. E. (2d), 111, the court held unconstitutional Section 2855-16, General Code, which provided that the coroner’s verdict should be “the legally accepted manner and mode in which the death occurred and the legally accepted cause of death.” The court construed this language to. be an attempt to make the coroner’s verdict binding and conclusive, and very properly held 'that this was beyond thé power of the Legislature, and, for that reason, among others, held the section to be unconstitutional. That case did not involve Section 2855-11, General Code, and the court did not assume to question its constitutionality. The fact that part of an enactment is unconstitutional does not require that the entire enactment shall be so declared. 37 Ohio Jurisprudence, 392. Furthermore, if the entire act were unconstitutional, then • the repealing section would be inoperative, thereby leaving the former statute in full force and effect. However, we are of the opinion that those portions of the statute that are pertinent here are valid enactments.

We find no error in the admission of the record.

Other errors are assigned. We have considered them and find none of them well-founded or prejudicial.

For these reasons, the judgment is affirmed.

Judgment affirmed.

Matthews, P, J., Ross and Hildebrant, JJ., concur in the syllabus, opinion and judgment.


text:
    In re Estate of Kennedy.

      (No. 4075
    Decided February 27, 1948.)

      Mr. Allen 1. Pretsman, for appellant W. C. Kennedy & Sons Company.

      Mr. G. G. Raver, for appellee William Schneider, executor. . ^

      Mr. Wendell H. Lilly, for appellee Amelia C. Kennedy.
   Wiseman, P. J.

This is an appeal on questions of law and fact from a judgment of the Probate Court of Franklin county, in which the court- found that the applicant, W. C. Kennedy & Sons Company, the appellant herein, had no valid lien on certain shares of stock the ownership of which was in William C. Kennedy, deceased, who died testate on April 29, 1946.

During the administration of the estate of William C. Kennedy the Probate Court ordered the executor of the estate to sell 50 shares of stock owned by the decedent in the W. C. Kennedy & Sons Company, hereinafter referred to as “company.” Within a few days thereafter the company filed an application in the Probate Court seeking a determination as to the validity of a lien of the company against the stock to the extent of $2,500. The company claims that on October 15, 1945, it executed a note to the Ohio National Bank for $15,000; that the note was signed by the company and also by William C. Kennedy and his son, Platt Kennedy; and that the company paid $10,000 on the note in December 1945, leaving a balance due of $5,000. The company further claims that in the latter part of December 1945, William C. Kennedy and Platt Kennedy each agreed to assume personally one-half of the balance due on the obligation and to indemnify the company from liability thereon; that William C. Kennedy and Platt Kennedy each pledged 50 shares of stock in the company as collateral security for the payment of the obligation; that on January 1, 1946, the company paid to the bank the balance due on the note in the amount of $5,000; that subsequently Platt Kennedy paid to the company $2,500, being his part of the obligation assumed, but that William .C. Kennedy failed to pay $2,500, being his part of the obligation assumed; that at the time of his death there was due the company from William C. Kennedy $2,500; and that the company now asserts its lien on the shares of stock pledged by William O. Kennedy to the extent of $2,500. The Probate Court found against the company and from that judgment the company has filed this appeal.

By stipulation of counsel the case is submitted on the record made in the Probate Court. The evidence shows that the company was a close corporation; that Wil'liam C. Kennedy held 50 shares and Platt Kennedy held 55 shares of the 125 shares of stock outstanding; that the note given to the bank was executed and paid as claimed; that on December 28, 1945, William C. Kennedy and Platt Kennedy each executed a $2,500 note payable in 120 days to the company and each pledged 50 shares of stock in the company as collateral; that the shares of stock were placed in the possession of the secretary of the company; that Platt Kennedy paid his note when due; and that the note for $2,500 executed by William C. Kennedy was not paid and was not produced in cpurt, the explanation being that the office of the company was burglarized in October 1946, and the papers of the company including this note were lost. The corporation records of the company do not disclose the transaction which transpired between the company, William C. Kennedy and Platt Kennedy at the time the notes were executed.

An issue of fact is made as to whether the notes were ever executed, and, if executed, whether the notes were ever delivered to and came into the possession of the-company. On the state of the record we have no difficulty in resolving these issues of fact in favor of the company. It is contended that the pledge of the stock fails on the ground that there was no consideration for the note. The original bank loan in the sum of $15,000 was for the benefit of the company. With the respect to the bank, the payee of the not'e, all these makers were personally liable. l As between the makers, William C. Kennedy and Platt Kennedy were sureties on the note. After the execution of the notes in the amount of $2,500 by William C. Kennedy and Platt Kennedy, the company paid to the bank out of its corporate funds $5,000, being the balance due on the bank note. No money was furnished to the company to make the payment by either William C. Kennedy or Platt Kennedy.

A valuable consideration may consist of some benefit accruing to the promisor, in return for which he makes a promise, or some detriment suffered by the promisee in return for which the promise is made to him. It is elementary that a promise by a person to do that which he is already legally bound to do 'is not a sufficient consideration to support a contract. 9 Ohio. Jurisprudence, 312. The burden of proof is on the-company, the holder of the note, to prove that the note executed by William O. Kennedy for $2,500 was supported by a valuable consideration. While it is true-that under Section 8133, General Code, absence or failure of consideration are matters of defense, a clear distinction exists between a defense of want of consideration and failure of consideration. It is contended, also, that under Section 8129, General Code, the note is deemed prima facie to have been issued for a valuable consideration. Where the defense is want óf consideration the burden rests on the holder of the note to show a consideration'by a preponderance of the evidence. Ginn, Admr., v. Dolan, 81 Ohio St., 121, 90 N. E., 141, 135 Am. St. Rep., 761. The rule has been stated more recently in the case of State, ex rel. Herbert, Atty. Genl., v. Hoff, 140 Ohio St., 236, 239, 42 N. E. (2d), 990, wherein it is held that a note imports consideration and when execution and delivery are admitted or shown and the note produced in evidence, a prima facie case is made out, and the burden to go forward with the defense is upon the defendant, nevertheless, the burden of proof rests on the plaintiff throughout the trial and does not shift. See, also, Grosjean v. Penna. Rd. Co., 146 Ohio St., 643, 648, 67 N. E. (2d), 623; Sharick v. Szefcyk, 17 Ohio Law Abs., 332, 334; Wenz v. Hamilton, 20 Ohio Law Abs., 187, 190 (Second District Court of Appeals); Wellman v. Eberly, 25 Ohio Law Abs., 464, 467 (Second District Court of Appeals).

In the case at bar we have searched the record in vain to find a consideration moving between the company on the one hand and William C. Kennedy and Platt Kennedy on the other. It is contended that a consideration moved between William C. Kennedy and Platt Kennedy in that each executed his note and pledged the stock as collateral in consideration of the other doing likewise. There is no evidence to support this contention. Consequently the company has not sustained the burden of proof to show the note executed by William C. Kennedy in the amount of $2,500 was supported by a consideration. The note being, invalid for want of consideration, the pledge fails.

Furthermore, the certificate of stock was not indorsed by William C. Kennedy. Under Section 8673-9, General Code, the owner of stock pledged without indorsement may be compelled to complete the transfer by making the necessary indorsement, but this statute provides that “the transfer shall take effect as of the time when the indorsement is actually-made.”

Since no indorsement has been made there has not been a legal transfer of the Stock.

It is contended that Platt Kennedy and Miss Luley, the president and secretary of the company, respectively, were incompetent as witnesses. Both were permitted to testify. Section 11495, General Code, provides that:

“A party shall not testify when the adverse party * * * is an executor or administrator * ■ * * of a deceased person except;” (exceptions enumerated).

It is conceded that the exceptions enumerated in the statute have no application. Were Platt Kennedy and Miss Luley adverse parties within the meaning of Section 11495, General Code? We do not think so. In Cockley Milling Co. v. Bunn, Admx., 75 Ohio St., 270, 79 N. E., 478, 116 Am. St. Rep., 741, it was held :

“In an action by a corporation against an executor or administrator, the genera] manager of the corporation is not, by Section 5242, Revised Statutes, which provides that a party shall not testify where the adverse party is an executor or administrator except to facts that occurred subsequently to the death of the decedent, disqualified to testify to facts occurring before the death of such decedent.”

It has been held that the president of a corporation is competent as a witness against an administrator or executor. Brocalsa Chemical Co. v. Langsenkamp (C. C. A. 6), 32 F. (2d), 725. The statute is generally construed to permit the officer of a corporation to testify as to transactions or communications with the decedent. 42 Ohio Jurisprudence, 185. Neither Platt Kennedy nor Miss Luley were parties to the action. In 42 Ohio Jurisprudence, 182, the text is as follows:

“And it is a general rule that a statute which in terms applies only to a party to the record is not,' by construction, to be made to embrace those who are not parties, even though they have an interest in the event of the suit.” In re Estate of Butler, 137 Ohio St., 96, 113, 28 N. E. (2d), 186.

We conclude that the note in question was given without consideration; that the pledge fails; that the 50 shares of stock pledged as collateral are a part of the assets of the estate of William C. Kennedy and that no valid lien existed thereon in favor of the company; and that Platt Kennedy and the company must surrender the stock to William Schneider, executor of the estate.

The application will be denied at the costs of applicant.

Decree accordingly.

Miller and Hornbeck, JJ., concur.