author: Kunkle, J.

text:
    Chandler et al. v. Dockman et al.

      Wills—Signature of testatrix — Mistake in arrangement of pages —Compliance with Section 10505, General Code—Signing will at end.'

    Where it clearly appears from an inspection of an original will that the lower or second sheet, as fastened together, was intended to be the first part of the will, and that the first or upper ■sheet, as fastened together, was intended to be the concluding portion of the will, and the signature of the testatrix appears at the end of the first or upper sheet, as fastened together, and immediately following the testimonium clause, and the attestation clause appears to the left of the signature of testatrix and is immediately followed 'by the signatures of the subscribing witnesses, such will is signed at the end thereof, within the meaning of Section 10505, General Code.
    (Decided December 5, 1917.)
    Error : Court of Appeals for Madison county.

      Messrs. Murray & Emery, for plaintiffs in error.

      Mr. C. R. Hornbeck and Messrs. Huggins, Pretzman & Davies, for defendants in error.
   Kunkle, J.

This is a proceeding to contest the will of Harriett Stouffer, deceased. The will consists of two typewritten sheets of paper, fastened together by brads or paper fasteners.

The instrument was presented to the probate court of Madison county, and application made to probate the same as the valid last will and testament of Harriett Stouffer.

The probate court refused to probate the same.

An appeal from the judgment of the probate court was taken to the court of common pleas, and that court admitted the will to probate as being the valid last will and testament of the said Harriett Stouffer.

Present plaintiffs in error then filed a petition in the common pleas court of Madison county to contest the will.

The case was submitted to the court upon the pleadings and an agreed statement of facts.

Upon the undisputed facts, the trial court instructed the jury to return a verdict finding that the said instrument was the valid last will and testament of said deceased.

From such judgment, error is prosecuted to this court.

In brief, it is contended that the instrument in question is not the valid last will and testament of said deceased, because it is not signed at the end thereof, as required by Section 10505, General Code.

This contention is based upon the fact that the signatures of the testatrix and of the attesting witnesses are upon the first, or upper page, as .the sheets are fastened together.

The following is a copy of said will as it appears in the record, marked Exhibit No. 1, to-wit:

(Top Page.)

“Fift, I hereby appoint my husband, Abram J. Stauffer and J. R. Woods of Plain City, Madison County, Ohio, as Sole Executors of this, my last Will and testament,
“In Witness whereof, I hereunto set my hand at Plain City, County of Madison, this 12th day of June 1914.
“Signed and Sealed by “Harriett Stouffer
said Harriet Stauffer,
who at the same time
published and declared the same, as and
for her last will and Testament, in the
presence of us, who, in her presence,
and in the presence of each other, and at
her request, have hereto subscribed our names
as witnesses.
“John H. Si-iultz
“Jos. Nunamaker"
(Bottom Page.)
“The last will and testament of Harriet Stouffer?
“In the Name of the benevelant Father of all.
“I, Harriet Stouffer of the village of Plain City, County of Madison, in the State of Ohio, being in good health of body, and of sound and Disposing mind and memory, and being desirous of settling my worldly Affairs while i have strenght and capacity so to do, do make, publish, and declare this my last will and testament,
“First, I give and bequeth to my beloved husband, Abram J. Stouffer, all my real Estate and personal Property that i may possess at my dead in fee Simple, and at his head if there is any left to be distrubed as follows to-wit, to my sister Marry Bowers, the sum of One Dollar, to my Neisses Effie Converce, Allice Chandler, Roby Beach and Charles Guy the Sum of one dollar each.
“To Minnie Dockman and Ettie Dockman two hundred Dollars each.
“To the Presbyterean Church of Plain City, Two Hundred Dollars.
“Second. It is my wish that wen the above bequeths are paid that my Executors herein after named shall see that John Guy my Brother if in need shall hold in' trust for- him whatever they may deem sufficient for his wants before any distribution is made of the remainder of my estate that may be left at the death of my Husband Abram J Stauffer,
“Third, Whatever property both personal or real that may be left after Clouse first and Second in this will has been complied with shall be devided.as follows, to-wit, to Ellen Shank the one Eight of the estate Left, to Marry Ann McKinneys Children, one Eight, Thurman Guy one third and to Rhoda Fraham and her Heirs Two thirds? “Fourth, If any of the witnin named Parties herein should become dissatisfied with the distribution made by me or attempt by law or otherwise to set this will aside, they shall forfeit all rights to share there under and their interest whatever it may be shall revert to the other Heirs herein mentined.”

It clearly appears from an inspection of the original wiil that the lower or second sheet, as fastened together, was intended to be the first part of the will, and that the first or upper sheet, as fastened together, was intended to be the concluding portion of the will.

The lower or second sheet of the will begins as follows:

“The last will and testament of Harriet Stouffer?
“In the Name of the benevalent Father of all.
“I, Harriet Stouffer of the village of Plain City,” etc.

This instrument then proceeds with regular continuity down to the bottom of said page, ending with paragraph No. 4, and commencing at the top of the first or upper page with paragraph No. 5 proceeds with regular continuity down to the testimonium clause thereof, which was clearly intended to be the end of the will.

The signature of the testatrix immediately follows such testimonium clause.

The attestation clause appears to the left of the signature of testatrix upon said sheet and is immediately followed by the signatures of the subscribing witnesses.

A careful examination of the will convinces us that the end of the will, within the meaning of Section 10505, of the General Code, is the blank line evidently intended for signature immediately following the testimonium clause. This is the place at which the will in question is signed.

We think this holding is not inconsistent, but in harmony, with the rule announced by our supreme court in Irwin et al. v. Jacques et al., 71 Ohio St., 395; Sears et al. v. Sears et al., 77 Ohio St., 104, and Mader et al. v. Apple et al., 80 Ohio St., 691.

In the case of Irwin et al. v. Jacques et al., supra, Judge Price, in announcing the decision, says at page 407:

“There should be some continuity in the expression of the testator’s wishes, and if a part of the will is aside from the continuity of the language, such as the marginal matter in this case, there should be some word or character used as a reference to the place it should occupy in relation to the other provisions, so that the end of the will may be ascertained.”

Under the rule of continuity of expression so announced, we think the beginning and end of this will can be definitely fixed by an examination of the context.

In the Sears case, supra, the court, in substance, held that the end of the will was the blank line for signature immediately following the testimonium clause; and the will in that case was held invalid because the testatrix did not sign at such place, but wrote her name as a part of the testative clause immediately following.

In the Mader case, supra, the will was held valid, where the testator signed upon the blank line immediately following the testimonium clause, notwithstanding the fact that there was a considerable blank space between the testimonium clause and the dispositive part of the will. In that case, Judge Crew, among other language employs the following at page 699:

“While the leaving of a blank space such as found in this will was imprudent, in that it afforded an opportunity for fraudulent practice, nevertheless, the leaving of such blank is not of itself sufficient to invalidate the will. By usage and custom, in every orderly constructed will, the. testimonium clause is universally recognized and adopted as the formal conclusion and end of such will, unless from the instrument itself a contrary intent appears.”

In the case of Stinson’s Estate, 228 Pa. St., 475, the court, commencing at the bottom of page 477, states:

“His written declaration is his animus testandi; when it is fully expressed, his will is finished and the end of it reached. It is there that his signature must appear as evidence that it is his will. What he regards as the end of his will and what must manifestly be regarded as the end of it, from an inspection and reading of the writing, is the end of it under the statute, which contains nothing about the spatial or physical end of it.”

From a careful consideration of the instrument in question, and of the authorities pertinent to the issue, we have reached the conclusion that the instrument under consideration was signed by the testatrix at the end thereof and that the trial court upon the undisputed facts correctly instructed the jury to return a verdict in favor of the validity of the will.

Finding no prejudicial error in the record, the judgment of the lower court will be affirmed.

Judgment affirmed.

Allread and Ferneding, JJ., concur.


source: Caselaw Access Project

author: Houck, J.

license: Public Domain

text:
    Montgomery Township Board of Education et al. v. Ashland County Board of Education et al.

      Schools—Creation of district—Remonstrance by electors — Signer may withdraw name, when.

    Electors signing a remonstrance against the rearrangement of school districts are at liberty to withdraw their names at any time within the thirty-day period, or until official or judicial action has been taken.
    (Decided October 17, 1917.)
    Appeal : Court of Appeals for Ashland county.

      Mr. C. H. Workman, for plaintiffs.

      Messrs. Mykrantz & Patterson, for defendants.
   Houck, J.

This cause comes into this court on appeal from the common pleas court of Ashland county. The plaintiffs seek to enjoin the county board of education of Ashland county from creating what is known as the Nankin Rural School District) the same being created out of certain territory lying and being in Orange and Montgomery townships in said county.

Waiving the question as to whether or not the theory upon which the case was presented to this court by counsel is a correct and legal one, we will pass upon the case as thus presented, which was submitted upon a transcript of the evidence taken in the common pleas court. Counsel for plaintiffs insists:

First. That under the facts, as established by the evidence submitted, and the law governing them, the county board of education was without power or authority to create the school district in question.

Second. That there was an abuse of discretion on the part of the county board of education in the creation of said school district.

Third. That within 30 days after the filing of notice to the boards of education in the territory affected, a majority of the qualified electors thereof filed a written remonstrance with the county board against the arrangement of the school district so proposed.

We do not deem it necessary to discuss the first two claims further than to say that we have examined the evidence offered in the case, and from the undisputed facts hold that these claims are not well taken and are entirely without evidential facts or law to support them or either of them.

The third question raised by counsel for the plaintiffs arises on the referendum part of the provisions of Section 4736, General Code, as found in 106 Ohio Laws, page 397, which reads:

“The county board of education shall arrange the school districts, according to topography and population in order that the schools may be most easily accessible to the pupils, and shall file with the board or boards of education in the territory affected, a written notice of such proposed arrangement ; which said arrangement shall be carried into effect as proposed unless, within thirty days after the filing of such notice with the board or boards of education, a majority of the qualified electors of the territory affected by such order of the county board, file a written remonstrance with the county board against the arrangement of school districts so proposed. The county board of education is hereby authorized to create a school district from one or more school districts or parts thereof. The county board of education is authorized to appoint a board of education for such newly created school district and direct an equitable division of the funds or indebtedness belonging to the newly created district. Members of the boards of education of the newly created district shall thereafter be elected at the same time and in the same manner as the boards of education of the village and rural districts.”

The facts in the case at bar are that in said proposed Nankin rural school -district there were 220 qualified electors on the date of the filing of the remonstrance, which remonstrance against said proposed district contained the names of 120 qualified electors.

It is further conceded as a fact that 15 of the electors who had signed the remonstrance withdrew their names from same, which was done within the 30-day period, being the period within which the remonstrants could file a remonstrance.

It is earnestly urged by counsel for plaintiffs that after the remonstrance was filed the signers thereof were without power and as a matter of law had no right to withdraw their names therefrom. In other words, that the signers had lost their power of recall and the board of education its authority or jurisdiction in the premises.

We can not agree to this principle of law claimed by learned counsel for the plaintiffs, because we are of the opinion that it is too narrow a construction placed upon these facts, which would in effect bar an elector from withdrawing his signature from a remonstrance, although the full period in which the remonstrance could be filed with the board of education had not elapsed. We hold the rule of law to be in such a case that the electors signing the remonstrance, or as many of them as so desired, had the right to withdraw their names from same at any time within the 30-day period, or until official or judicial action had been taken upon the remonstrance; and, neither of these having occurred in the present case, in our judgment, the withdrawal of the 15 electors who signed the remonstrance was not only their privilege but a legal right which they could exercise under the conceded facts in this case.

It therefore follows, that, if 15 of the electors have withdrawn from the remonstrance, leaving only 105 legal remonstrants and this not being a majority of the electors in the proposed new school district, no claim can legally be made by plaintiffs that a remonstrance such as could be claimed under the above section was presented or before the board of education.

Therefore, assuming that such remonstrance, if signed by the proper number of electors and presented within the time prescribed by law, would, in effect, invalidate the proposed new school district, it will be observed that inasmuch as this provision of the statute had not been complied with plaintiffs can not thereby claim any legal rights thereunder.

We do not deem it necessary to discuss further the facts nor the law of the case other than to say that many of the questions here involved have heretofore been determined by this court in other cases, as well as by the supreme court of our state. It therefore follows from what we have already said that the plaintiffs are not entitled to the relief prayed for in their petition, and it is the judgment of this court that the petition of plaintiffs be dismissed, that the injunction heretofore allowed be dissolved, and that the costs of this case -be paid by plaintiffs.

Petition dismissed.

Powell and Shields, JJ., concur.


author: Pollock, J.

text:
    Johnson v. The American Gas Co.

      Covenants—■Running with land—Word “assigns?’ unnecessary — Right of way — Free gas for residence—Rights of grantor’s successors—Liability of gas company?s assigns.

    1. The use of the words “assigns” or “heirs and assigns” is not necessary or essential to create a covenant running with the land, and in determining whether a covenant will run with the land the material inquiries are whether the parties intended to impose such burden on the land, and whether it is one that may be imposed consistently with principle and equity.
    2. Where the owner of farm lands grants to a company, its successors and assigns, the right to lay and maintain a pipe line over said farm for the purpose of transporting .gas, in consideration of one dollar and said company furnishing gas free for one fire in the residence of said owner, and said company lays said pipe line, and it and its successors in title maintain the same, and furnish free gas in said residence to the then owner, and continue to furnish such gas for a number of years to his first and second successor in title, such covenant runs with the land, and the successor to said company will be . required to furnish free gas to the successor or successors in title of said land, according to the provisions of such contract, so long as the successor of said company continues to use such right of way to transport gas.
    (Decided November 28, 1917.)
    Appeal : Court of Appeals for Harrison county.

      Mr. W. B. Stevens and Messrs. Rowland & Pettay, for plaintiff.

      Mr. W. L. Handley, for defendant.
   Pollock, J.

In November, 1899, John McLandsborough entered into a written contract with The Scio Gas Company, by which he granted to said company a right of way for a pipe line to convey gas across his farm in North township, this county. Said contract reads as follows:

“Right of Way
“John McLandsborough to The Scio Gas Company.
“Agreement.
“Know all men that I, John McLandsborough of the County of Harrison and State of Ohio, in consideration of the sum of One Dollar to me in hand paid by the Scio Gas Company of Scio, Ohio, do hereby grant to the said The Scio Gas Company, its successors and assigns, the right to lay and maintain a pipe line for transporting gas across my farm in North township, said county, and described as follows: * * *
“Said line to be laid in a course and at a place on said farm to be agreed upon by the parties hereunto before the same is laid. The said The Scio Gas Company, its successors and assigns, shall have the right to enter the premises described herein at all times to repair and maintain said gas lines.
“It is further agreed that The Scio Gas Co. is to furnish free gas for one fire in the residence of said John McLandsborough, said John McLandsborough making his own connections with said gas line.
“Also all damages to growing crops and to fences caused by laying and maintaining said gas line shall be paid for by The Scio Gas Company.
“It is further agreed that when the Scio Gas Co. shall procure more gas that they will furnish free gas for a second fire under same conditions as above.
“Said gas line shall be buried if so required by John McLandsborough or assigns.”

This contract is signed by the parties, witnessed by two witnesses, acknowledged before a notary public, and duly recorded.

In pursuance of the foregoing, said company soon thereafter laid its line for a considerable distance across said premises, and from this line the said John McLandsborough constructed a domestic line to his residence upon said premises, and gas was furnished, as in said contract provided. In the year 1904 John McLandsborough died, and Seigel McLandsborough, a son, took title to said real estate, by will, and said company continued to furnish gas through said domestic line to said residence. In 1911 The Scio Gas Company sold and assigned said “right of way” to The American Gas company, which continued to furnish gas to said residence. On January 2, 1913, Seigel McLandsborough conveyed said premises to Ina J. McLandsborough, now Ina J. Johnson, the plaintiff herein, and said American Gas Company continued to furnish gas to said residence until the 26th day of May, 1917, when said company disconnected said domestic line and refused longer to furnish gas in said residence, although it and its predecessor had continuously used said right of way since the date of said grant and is still using the same. Soon thereafter a petition was filed in. the court of common pleas of this county, asking that a mandatory injunction issue requiring said company to again connect said domestic line with said main line and to furnish gas to said residence. To this petition an answer was filed, alleging that said contract or “right of way” was merely personal in character between the original parties, and that the covenant as to free gas did not run with the land. To the answer a reply was filed, denying the averments thereof; and so the issue was made up, trial had, and a decree entered granting said mandatory injunction, from which an appeal was taken to this court. The only issue to be determined here is whether the agreement to furnish gas in said residence was a covenant running with the land, or was merely personal, inuring to the benefit of John McLandsborough only. The subject of “covenants running with the land” has elicited a wide range of discussion in this and many other jurisdictions, and in these discussions it has been a subject of much concern whether a covenant concerning a thing not in esse will under any circumstances inure to the benefit of or bind the assignee, and also whether it is necessary to use the words “assigns” or “heirs and assigns” to make a covenant concerning a thing not in esse run with the land. One of the earliest discussions, and possibly the most notable, is found in Spencer’s Case, 5 Coke, 16, and probably no other has attracted more, if quite so much, attention. This contains a series of seven resolutions passed by the judges concerning covenants — which of them run with the land, and which are collateral; where the assignee should be bound, without naming him, and where not; and where he should not be bound though named, and vice versa. The first and second of said resolutions are of interest here. The first reads as follows:

“When the covenant extends to a thing in esse, parcel of the demise, the thing to be done by force of the covenant is quodammodo annexed and appurtenant to the thing demised, and shall go with the land, and shall bind the assignee, although he be not bound by express words; but when the covenant extends to a thing which is not in being at the time of the demise made, it cannot be appurtenant or annexed to the thing which hath no being: as if the lessee covenants to repair the houses demised to him during the term, that is parcel of the contract, and extends to the support of the thing demised, and therefore is quodammodo annexed appurtenant to houses, and shall bind the assignee although he be not bound expressly by the covenant.”

In the instant case the covenant concerns a thing which was not in esse at the time of the demise made, but to be “newly built after,” and therefore would seemingly bind the covenantor and not the assignee, for “the law will not annex the covenant to a thing which hath no being.” This, however, is the provision of said first resolution only.

The second resolution reads as follows:

“It was resolved that in this case, if the lessee had covenanted for him and his assigns, that they would make a new wall upon some part of the thing demised, that for as much as it is to be done upon the land demised, that it should bind the assignee; for although the covenant does extend to a thing to be newly made, yet it is to be made upon the thing demised, and the assignee is to take the benefit of it, and therefore shall bind the assignee by express words.”

Recognizing the inconsistency in the above resolutions, the courts have been gradually abandoning the position that it is necessary to use the word “assigns” to make a covenant concerning a thing not in esse run with the land, and have been coming to regard the intention of the parties, as gathered from the whole instrument, the governing principle, and not the use or meaning of mere technical words. Moreover, it is exceedingly doubtful whether the court so decided in Spencer’s Case.

In the English notes to said case, in 15 English Ruling Cases, 244, it is observed that Anonymous Case (1585) in F. Moore, 159, pi. 300, has been identified and approved as a report of the final determination of Spencer’s Case. It is there stated that the court held:

“Notwithstanding that the covenant lacks words (assigns), yet each, by the acceptance of the possession, has made himself subject to all covenants concerning the land but not to collateral covenants; and covenants of reparations * * * are covenants inherent to the land, with which the assignee without special words shall be charged.”

The foregoing seems all the more likely to have been the court’s conclusion, in view of the observations of Chief Baron Pollock, speaking for the court of exchequer in Minshull v. Oakes, 2 Hurl. & N., 793, 808, where it is said:

“The explanation may be, that Lord Coke is reporting a variety of arguments and opinions expressed, while Moor gives the ultimate decision.”

Attention is also directed to the fact that the resolutions were never acted on, and that, according to Moore, the decision was the other way, as was that in Smith v. Arnold, 3 Salk., 4.

Therefore, so far as Spencer’s Case is concerned, and it is the notable one in all early jurisprudence, it seems safe to say that the use of “assigns” as a technical word is not now and never has been essential to the running of a covenant with the land at common law.

It is indeed difficult to reconcile the first and second resolutions in Spencer’s Case, and the conclusion must be that many of the courts have practically repudiated the first by following the second, and that the word “assigns” is not necessary to make a covenant concerning a thing not in esse run with the land; and so it is held in Sexauer v. Wilson, 113 N. W. Rep., 941 (136 Ia., 357), in the first paragraph of the syllabus, as follows:

“The use of ‘assigns’ as a technical word has never been essential to the running of a covenant with the land at common law.”

The foregoing is in point with the instant case and is somewhat similar as to facts. The covenant related to a division fence which was not shown by the testimony to be in existence at the time of the execution of the deed; and yet it was held that the word “assigns” was not necessary to create a covenant running with the land.

Again, in the case Doty v. Chattanooga Union Ry. Co., 53 S. W. Rep., 944 (103 Tenn., 564), it is held:

“A deed conveying a right of way for a railroad in consideration of five dollars and an agreement by the grantee to run daily passenger trains on and along the right of way, with provision that, if it is abandoned for nonuser for six months, title shall revert to the grantor, contains a covenant running with the land, as to the running of trains, though the-road was not built when the deed was made, and the word ‘assignee’ is not used; so that a purchaser of the road is liable thereon for a breach subsequent to the purchase, though there had been breach of the covenant before the transfer.”

The foregoing is similar in principle with the case at bar, and somewhat similar as to facts. And holding squarely to the same effect are Denman v. Prince et al., 40 Barb. (N. Y.), 213; Teachout v. Capital Lodge I. O. O. F., 128 Ia., 380, 104 N. W. Rep., 440; Norman v. Wells, 17 Wend. (N. Y.), 136, 149, 150, 153; Beddoe’s Exr. v. Wadsworth, 21 Wend. (N. Y.), 120, and Bally v. Wells, 3 Wils., 25. And in Musury v. Southworth et al., 9 Ohio St., 341, in the third paragraph of the syllabus, it is held:

“3. When such a covenant to insure has for its object a building to be erected after the date of the lease, but which, when erected, is to be used by the lessee, and is an essential ingredient in the agreement of the parties for the creation of the estate, it is not indispensable to make such a covenant run with the land, that 'assignees’ should be expressly named; but the covenant being one which may be annexed to the estate, and run with the land, equivalent words, or a clear intent shown by the whole instrument, may suffice.”

■ The foregoing is supported by the later case of Huston v. The Cincinnati & Zanesville Rd. Co., 21 Ohio St., 235, which was an action to appropriate private property for railroad purposes. After a jury had been impaneled all claim for damages for fencing was withdrawn from the consideration of the jury, upon the agreement of the company to make convenient crossings and forever maintain fences along said right of way across said premises. The landowner conveyed said property to another, who, in turn, conveyed to still another. Said railroad was sold to another company, which refused to maintain said fences. The court held in the second paragraph of the syllabus:

“2. It is an agreement which runs with the land,- so as to be binding as between the assignees or grantees of both parties thereto.”

And yet the words "assigns” or "heirs and assigns” were not used.

Numerous other cases might be cited in support of the general proposition; but, while it is true that some courts have elected to follow the first resolution in Spencer’s Case, yet the greater number by far have elected to follow the second.

In determining whether a covenant runs with the land the material inquiries are:

1. Whether the parties meant to charge the land.

2. Whether the burden is one that can be imposed consistently with policy and principle.

It is so held in the second paragraph of the syllabus in the case of Sexauer v. Wilson et al., supra.

In the instant case John McLandsborough received but one dollar consideration for said right of way; beyond question the real consideration was the gas to be furnished for one fire, and two if more gas was procured, and, this, “in the residence of John McLandsborough.” Not to or for John McLandsborough, but in the residence; therefore the name “John McLandsborough” is descriptive of the residence in which the gas was to be furnished. Wherefore, the contention that John McLandsborough being dead the obligation was discharged is not justified. The intention of the parties in the instant case, as disclosed by their conduct, is of some value here in construing their contract. The gas was furnished by The Scio Gas Company to said residence until the death of John McLandsborough, and after his decease to his son, Seigel; it was then furnished by The American Gas Company, the successor of The Scio Gas Company, to Seigel; and, later, to Ina J. McLandsborough Johnson, up until last May; without a question. The parties themselves so construed this contract. The case of Mosier et al. v. Parry, 60 Ohio St., 388, is applicable. The first paragraph of the syllabus reads as follows:

“1. Where the language of a contract is of doubtful import, it is proper to ascertain the circumstances which surrounded the parties at the time it was made, the object intended to be accomplished, and the construction which the acts of the parties show they gave to their agreement, in order to give proper construction to the words they have used in the instrument, and to determine its legal effect.”

Likewise, the case of Kling, Admr., v. Bordner, 65 Ohio St., 86, is well in point; also New Pittsburg Coal Co. v. N. Y. Coal Co., 31 C. D., 458, the second paragraph of the syllabus of which reads as follows:

“Evidence showing the practical construction which either party has placed upon a coal mining contract and the acquiescence therein by the other party, may be considered for the purpose of aiding in its proper construction.”

In harmony with the foregoing is M. E. Church Society v. Ashtabula Water Co., 10 C. D., 648, and another case worthy of notice in this connection is Trustees of Cin. So. Ry. v. Porter, 12 N. P., N. S., 353. Resting the interpretation of the contract upon the conduct of the parties, it is conclusively shown that they understood the covenant as to free gas to be one running with the land.

Now as to the second material inquiry, Is the burden one that can be imposed consistently with policy and principle?

As above observed the pecuniary consideration for said “right of way” was one dollar. It could not be successfully maintained for a moment that this, within itself, was a full and fair consideration for the enjoyment of said right by said company or its successors and assigns, so long as they might care to use it. In fact the intention as gathered from said contract is exactly to the contrary, because the covenant as to free gas is inserted, which no doubt was then recognized by all parties as the real consideration, because the one dollar was merely nominal, which negatives the theory that it was the principal consideration, or that it was so considered by the parties, whose conduct clearly indicates that they understood the covenant running with the land to be the principal consideration. And so it is observed by Welch, C. J., speaking for the court in the above case of Huston v. Railroad Co., beginning at page 246, as follows:

“Does the contract run with the land? Undoubtedly it does. It was an agreement to erect structures upon the land appropriated, and to keep them up so long as that was enjoyed.”

That is to say, so long as the right of way was used or enjoyed the fences were to be maintained.

It is also provided in the agreement in the instant case that The Scio Gas Company, its successors and assigns, shall have the right to enter said premises at all times to repair and maintain said gas lines; thereby all the rights granted originally to The Scio Gas Company were saved to its successors and assigns; why not likewise to the owner of the freehold which carries the burden of the easement which the gas company is insisting that it shall continue to carry? It is only fair and reasonable that free gas be furnished in said residence so long as said right of way is enjoyed. And such obligation may be consistently imposed upon the de-fendant company, or its assigns, while it continues to exercise such right. When the defendant company purchased said “right of way” it necessarily acquired it subject to all the conditions imposed, and by its acceptance of the contract was bound by the conditions thereof; and so it is held in Hickey v. L. S. & M. S. Ry. Co., 51 Ohio St., 40, the first paragraph of the syllabus reading as follows :

“1. That the grantee, by accepting the deed, will be deemed to have entered into an express undertaking to perform the condition contained in the deed, and such undertaking will run with the land, and become obligatory upon a subsequent owner by purchase from the grantee of the company.”

It is likewise so held in L. E. & W. Rd. Co. v. Priest, 131 Ind., 413, 31 N. E. Rep., 77; and in Anonymous Case, F. Moore, 159, 300, as above quoted, where it is said that acceptance of possession makes one liable for all covenants, except collateral.

The defendant company knew or is charged with knowledge of this covenant relating to free gas, because said contract is a matter of record in this county (Lease Record 11, pp. 113, 114), and it was the purchaser of said right of way from The Scio Gas Company.

In 11 Cyc., 1080, there is a helpful discussion of “covenants running with the land,” where it is observed as follows:

“In order that a covenant may run with the land, that is, that its benefit or obligation may pass with the ownership, it must respect the thing granted or demised, and the act covenanted to be done or omitted must concern the land or estate conveyed.”

The instant case comes well within the above definition. Further discussion will be found at pages 1051 and 1081.

Further discussion is superfluous here in view of the fact that for eighteen years free gas was furnished in the said John McLandsborough residence by The Scio Gas Company, and its successor, the defendant here, during the occupancy of John McLandsborough, that of his son, and until recently that of his daughter; the defendant company took said right of way with a full knowledge of the conditions; it is still using it and must be bound thereby. The word “assigns” is not necessary or essential in order to make a covenant run with the land, and judgment must therefore be entered for plaintiff.

Judgment for plaintiff.

Farr, J., concurs.


text:
    The State, ex rel., v. Cregar.

      Bastardy—Complainant marries mm other than defendant—Before birth of child.

    Proceedings in bastardy cannot be maintained by a woman who, prior to the birth of her child, marries a man other than the putative father and is so married at the time the proceedings are instituted.
    (Decided January 5, 1918.)
    Error: Court of Appeals for Clark county.

      Mr. T. J. McCormick, for plaintiff in error.

      Messrs. Stafford & Arthur, for defendant in error.
   Kunkle, J.

This is a proceeding in bastardy

originally brought before a justice of the peace under Section 12110, General Code.

This section provides:

“When an unmarried woman, who has been delivered of or is pregnant with a bastard child, makes a complaint in writing, under oath, before a justice of the peace, charging a person with being the father of such child, he thereupon shall issue his warrant, directed to any sheriff or constable of the state, commanding him to pursue and arrest such accused person in any county therein, and bring him forthwith before such justice to answer such complaint.”

Without undertaking to quote in detail from the record it is sufficient to say that the same discloses that the child in question was begotten September 26, 1916; that Mary R., the complainant, was married February 12, 1917; that the child in question was born June 13, 1917; and that the complainant was at the time of the birth of the child, at the time the proceeding was instituted before the justice of the peace, and still is, a married woman, being the wife of a man other than defendant in error.

Can this proceeding, under such a state of facts, be maintained ?

We have carefully considered the briefs which have been filed by counsel, and without attempting to discuss in detail the authorities so cited we are of opinion that under the reading of Section 12110, General Code, and under Ohio decisions, such as Haworth v. Gill, 30 Ohio St., 627, and Miller v. Anderson, 43 Ohio St., 473, etc., this action can not be maintained.

We are also of opinion that the case of Parker v. Nothomb, 65 Neb., 308-315, cited by counsel for plaintiff in error, is clearly distinguishable from the case at bar.

A consideration of the Ohio cases, in our opinion, requires a holding to the effect that the action can not be maintained.

The judgment of the lower court will therefore be affirmed.

Judgment affirmed.

AlLread and Ferneding, JJ., concur.


author: Jones, P. J.

text:
    Schultz, Receiver, v. The City of Cincinnati.

      Receivers—Water rents—Preferred claims—Interests of estate represented by receiver — Right of receiver to appeal from judgments affecting same.

    1. A receiver, as a party defendant to an action, has the same right to appeal from a judgment of the court affecting the interests of the estate represented by him, that the party or corporation to whom the estate originally belonged would have had if the suit had been brought by or against them.
    2. The above stated rule is not changed by the fact that a claim is prosecuted by a motion in the nature of an intervening petition in the case where the receiver has been appointed, instead of as an independent suit against the receiver.
    8. A claim for water rents in favor of a city is not entitled to a preference against funds in the hands of the receiver of the •company which úsed the water, and which funds are the proceeds of a sale of the personal property of such company.
    (Decided June 18, 1917.)
    Error : Court of Appeals for Hamilton county.

      Messrs. Burch, Peters & Connolly, for plaintiff in error.

      Mr. Chas. A. Groom, city solicitor, and Mr. Saul Zielonka and Mr. Charles Tatgenhorst, Jr., assistant city solicitors, for defendant in error.
   Jones, P. J.

The question to be determined in this case is whether the city of Cincinnati is entitled to be paid a claim for water rent which accrued prior to the appointment of a receiver, out of the proceeds of personal property which was sold under the order of court and reduced to cash by the receiver. The claim of the city is that it has a first, valid and subsisting lien for the full amount of accrued water rent upon the money in the possession of the receiver. This claim was allowed in the trial court and the receiver ordered to pay the claim in full. To. this order error was prosecuted in this court.

It is contended at the outset that the receiver has no power to except to the order of the court which appointed him, or to file proceedings to review that court’s order in regard to the payment of this claim. In Alderson on Receivers, Section 588, the law is thus stated:

“Every claim presented against a fund in the hands of a receiver, if contested before the court, becomes in effect a suit against the'receiver, which is ended by a final judgment allowing or rejecting the claim, and any party to the contest, dissatisfied with the result, may have the proceedings revised on appeal. The receiver, as a party defendant to an action, has the same right to appeal from a judgment of the court affecting the interests of the estate represented by him, that the party or corporation to whom the estate originally belonged, would have had if the suit had been brought by them.”

If this claim had been prosecuted as an independent suit by the city against the receiver, with leave of court, instead of by a motion in the nature of an intervening petition in the case where the receiver had been appointed, there would be no question as to the power of the receiver to secure a review of the judgment of the court. (Smith v. Folsom, 80 Ohio St., 219, and Webb, Recr., v. Stasel, Recr., Id., 122.) The power of a receiver to secure such an appeal was sustained in Felton v. Ackermann, 9 C. C. A., 457, (61 Fed. Rep., 225). In the opinion of the court by Taft, J., it was said (page 458):

“While it is true that the receiver is an arm of the court in the administration of the property, yet, where persons intervene to obtain relief against him, because they cannot obtain full relief in any other forum, the issue raised by his answer to the petition makes the proceeding an adversary one, in which the receiver represents the interests of the owners of the property, of which -he is temporarily in charge. If, as such representative, he feels aggrieved by an order of the court made in an adversary proceeding of this character, it is difficult to see why he should not be permitted to have the order of the court reviewed by the appellate tribunal to which any other litigant may resort. Certainly, the owners of property, if aggrieved by the order against the receiver, might appeal, and there would seem to be no justice in preventing the temporary custodian of their property from doing so.”

See also Bosworth v. Terminal Rd. Assn., 26 C. C. A., 279, 80 Fed. Rep., 969.

The rule is thus laid down in High on Receivers (4 ed.), Section 264a:

“As to the right of a receiver to appeal from orders and judgments entered in the course of the receivership- proceedings, it is held that he has the same right of appeal from an adverse judgment for the recovery of funds pertaining to his receivership, as the party over whom he was appointed would have had.”

See also Beach on Receivers (2 éd.), pages 295 and 296.

Under these authorities we hold that the receiver in this case was entitled to prosecute this error proceeding for the review of the order complained of.

The city claims that, 'water refits due it are a preferred claim under Section 3958, General Code, which is as follows:

“For the purpose of paying the expenses of conducting and'managing the water works, such director may assess and collect from time to time a water rent of sufficient amount in such manner as he deems most equitable upon all tenements and premises supplied with water. When more than one tenant or water taker is supplied with one hydrant or off the same pipe, and when the assessments therefor are not paid when due, the director shall look directly to the owner of the property for so much of the water rent thereof as remains unpaid, which shall be collected in the same manner as other city taxes.”

There is no question but that a municipality in Ohio can construct waterworks and supply water to its inhabitants, and the director of public service of a city is authorized to manage such waterworks and to make such by-laws and regulations as he may deem necessary for such purpose, which- regulations under Section 3957, General Code, - shall have the validity of ordinances. It is not, however, contended that any regulation of the city of Cincinnati has been made or attempted by virtue of which this claim for water rent‘would become a lien or first charge upon the assets of The Warner Equipment Company in the hands of its receiver, nor is any specific statute, ordinance or regulation pointed out by the city under which this claim would be deemed a preferred claim as against the receiver. It is argued that water rents are in the nature of taxes, and, that, as general taxes become a lien against real estate, in some manner this claim should be a lien against this fund. In Alter v. Cincinnati et al., 56 Ohio St., 47, the supreme court in its opinion by Burket, J., at page 67, said:

“Water rents are not, strictly speaking, taxes, and certainly not taxes on property to be regulated under article twelve of the constitution.”

Even taxes are not a lien upon personal property, and become such only after judgment.

There is no question but that under proper regulations the city could protect itself in the collection of water rents by providing that the water be turned off and not turned on again until all back rent had been paid. (City of Mansfield v. Humphreys Mfg. Co., 82 Ohio St., 216.) No doubt other methods might be devised equally efficacious to secure back water rents in cases of the appointment of a receiver for the management of manufacturing property, but no provision by law has been pointed out whereby this particular claim can be held a preference against the fund in the hands of this receiver.

The judgment below must therefore be reversed.

Judgment reversed.

Gorman and Hamilton, JJ., concur,'


author: Powell, J.

text:
    McCoy, Exr., v. Gosser et al.

      Gifts inter vivos—■Requisites — Intention to make gift — Necessity of delivery—Acceptance by donee—Burden of impeaching completed gift.

    1. To constitute a gift inter vivos, the donor must have the intention of making the gift, and he must deliver the thing intended to be given to the donee in praesenti, parting with all dominion and control over it. This, to constitute a perfect and complete gift, must be followed by acceptance by the donee of the thing given.
    2. If a completed gift be shown, the 'burden of impeaching it is on him who asserts that there is no gift.
    (Decided July 13, 1917.)
    Appeal : Court of Appeals for Coshocton county. " ‘ •

      Mr. C. B. Hunt, for plaintiff.

      Mr. W. S. M err ell; Mr. George B. Harris and Mr. C. A. Neff, for defendant Fannie N. Burns.

      Messrs. Kibler & Kibler; Mr. Frank E. Pomerene and Mr. George D. Klein, for other defendants.
   Powell, J.

This action is in this court by ap-. peal, and is submitted on a transcript of the evP dence offered in the court of common pleas, supplemented by some additional testimony. It is an action under favor of Section 10857, General Code, brought by C. B. McCoy, as executor of the will of Charles F. Gosser, deceased, asking the direction of the court in the administration of the estate of said decedent. A number of questions are presented by the petition, relative to which plaintiff is in doubt as to his duties. All parties in interest are made parties to the suit, and their respective claims are presented by proper pleadings for that purpose; and, while several questions are raised by the petition, but one is presented to the court by briefs and the arguments of counsel. The facts 'necessary to an understanding of this particular question are as follows:

The decedent, C. F. Gosser, was at the time of his death a director in The Pope-Gosser China Company, a corporation engaged in business in Coshocton, Ohio. Prior to October, 1912, he had become the owner of a majority of its common stock, being 502 shares, represented by some six or seven stock certificates. These certificates had all been endorsed by him in blank, and given to the defendant Fannie N. Burns, in whose possession they were until November, 1912. October 24, 1912, at the request of said C. F. Gosser, three new certificates, aggregating 502 shares, were issued and delivered to him. Sometime in November, 1912, these three certificates, with a letter accompanying the same, were endorsed by him in blank and enclosed in an envelope and sent to said Fannie N. Burns, who then resided, in Cleveland, Ohio, with a request that the other certificates, then in her possession, should be returned to him, which request was complied with by Mrs. Burns. The certificates so returned were handed to the secretary of said company, after the name of said decedent, which had been endorsed thereon in pencil, had been erased. The three certificates so sent to Fannie N. Burns were also endorsed by said decedent, in blank, by writing his name on the back of the same with pencil. These certificates were in the ordinary form of common stock certificates of an Ohio corporation, with a printed form of assignment on the back, to which his signature in pencil was appended. Said certificates of said corporation were offered in evidence and are the capital stock certificates Nos. 42, 43 and 44.

The defendant Fannie N. Burns claims to own said three certificates and the capital stock of said corporation represented by them, and filed an answer and cross-petition in this action setting forth with particularity her claims in the premises. She bases her claims upon three grounds: 1. That they were given to her by decedent in his lifetime. 2. That they were specifically bequeathed to her by the express terms of the will of said decedent. 3. That if they are not expressly given to her by said will, they are given to her by implication.

The defendants William E. Gosser and Frank Gosser are brothers of said decedent, and with the four minor children of a deceased brother are the next of kin and heirs at law of said Charles F. Gosser, deceased. They deny that there was a gift of said stock to said Fannie N. Burns and deny that the same was given to her by the will of decedent, either expressly or-by implication. The contention of William E. Gosser and Frank Gosser is that Charles F. Gosser died intestate as to these 502 shares of stock, and that they descend as intestate property under the laws of descent and distribution, to his heirs at law.

These are the two principal contentions in the case. There is still another claim made, which was mentioned at the trial, but in support of which no brief was filed.

The minor children of the deceased brother of said Charles F. Gosser are residuary legatees under his will. If the claim of gift or bequest in favor of Fannie N. Burns should fail, and it should be held that said decedent did not die intestate as to these shares, they would then become a part of the residuum of his estate and pass to said minor children by the express terms of his will.

The defendants William E. Gosser and Frank Gosser contend that a gift to said Fannie N. Burns, if one were intended, failed because said decedent never parted with his control and dominion over the stock, even after it had been indorsed and delivered to her. He continued to vote the stock at the annual meetings of the stockholders, drew all the dividends declared thereon and deposited the same to his own bank account, and to all appearances acted as the owner of said stock, which was never transferred out of his name on the stock books of said corporation, but was in his name on said books at the time of his death.

To constitute a gift inter vivos, two things must concur on the part of the donor:

First, he must have the intention of making the gift; and, second, he must deliver the thing intended to be given to the donee, in praesenti, parting with all dominion and control over it. This must be followed by acceptance of the thing given, by the donee. When these elements concur, the transaction becomes a perfect or complete gift.

Did decedent intend to make a gift of this stock to Fannie N, Burns ?

We think he did. His letter to her enclosing the stock certificates, his declarations to Mary W. Burns and to Eleanor Mitchell, and the recitations of his will, all show such intention. They all stand uncontradicted, and they can not be construed consistently with any other intention.

There was also a delivery of the thing intended to be delivered, so far as the same could be made. The stock itself is an incorporeal thing, incapable of being delivered except by that which represents it, the stock certificates. Stock certificates aggregating 502 shares, issued to said Charles F. Gosser in his lifetime, were delivered by him, indorsed in blank, to the said Fannie N. Burns, and the same were kept and retained by her, in her possession, and under her control until his death. The legal effect of such delivery is defined by statute as follows :

“Sec. 8673-1. Title to a certificate and to the shares represented thereby can be transferred only,
“(a) By delivery of the certificate indorsed either in blank or to a specified person by the person appearing by the certificate to be the owner of the shares represented thereby. * * *
“Sec. 8673-6. The endorsement of a certificate by the person appearing by the certificate to be the owner of the shares represented thereby is effectual, except as provided in section 7 [Section 8673-7], though the indorser or transferer, * * *
“(d) Has received no consideration.”

These sections are part of an act entitled, “An act to make uniform the law of transfer of shares of stock in corporation.” (102 O. L., 500).

The indorsement and delivery of said certificates by the said decedent passed the legal title thereto to Fannie N. Burns. Of this, we think, there can be no doubt.

Did such title pass to her as donee of said stock, or as trustee of the same for the benefit of said decedent? It must have been in one of these two ways. There was no consideration for the transfer and the record does not disclose any declaration of trust on the part of decedent or of Mrs. Burns for his benefit.' In legal effect such transfer must therefore have been a gift to her, unless such transfer can be impeached under the provisions of Section 8673-7, General Code.

There is nothing in the answer of William E. Gosser and Frank Gosser that states a cause of action in their favor or a defense to the claim of Fannie N. Burns to said stock, under the provisions of Section 8673-7.

Did the said decedent exercise such control over said shares as to defeat any intended, gift of the same to said Fannie N. Burns?

We have seen that he had the intention to make such gift and that an unconditional delivery of the stocks to her had been made. This would constitute a perfect and completed gift. After such gift had been made and the property passed thereby lo the donee, the parties to such transaction could deal with each other in relation thereto just as though the transfer had been made by a sale or any other way than by gift. The record shows his control and dominion over the shares, but it does not show his authority to exercise such control and dominion, or whether he had any such authority. It does not show anything in relation to it, and his acts in the exercise of such control and dominion may have been with the fullest authority from her. At least there is nothing shown to the contrary. And besides, he exercised the same control and dominion over her other property as he did over these 502 shares of stock. This is shown by the record. There was a secrecy about the whole transaction that covered up everything that was not absolutely necessary to be made known. She never asked the officers of the corporation to transfer the shares to her own name, nor did she demand the dividends, nor in any other way did either of them disclose to the corporation that said certificates had been transferred to her. He continued to hold himself out to the world as the owner of the stocks and at the same time was sending her large sums of money. Who knows what accountings were had, or were intended to be had between them? We do not say there were any. We do not know, and the record does not disclose anything in relation to it. It neither sustains nor impeaches the claim of either of the parties in this particular. If a completed gift be shown, the burden of impeaching it is on him who asserts that there is no gift.

Without discussing this phase of the subject further, it will be sufficient to say that we hold there was a completed gift inter vivos of the stock in question from the said Charles F. Gosser to the defendant Fannie N. Burns, in November, 1912, if not prior to that time, and that she had possession and was the owner of the same at his death in September, 1916.

This conclusion in itself disposes of the claims made under the will of decedent with reference to said shares of stock. If Fannie N. Burns was the owner of . said stocks, at the date of testator’s death, there was no title remaining in him, at least none shown by the record, on which his will could operate. There is but one contingency, as we view it, in which it would make any material difference whether the language of the will with reference to these shares is dispositive or not, and that is in the event that the defendant Fannie N. Burns took the title to said shares, by delivery of the certificates, in trust for the benefit of said testator. In such case he would still be the beneficial owner of such shares, with the consequent right to dispose of them by will. There is no such case made by this record, and we find upon the principal contention for the defendant Fannie N. Burns — that she is the owner of said stock certificates Nos. 42, 43 and 44, aggregating 502 shares of the common capital stock of the said The Pope-Gosser China Company, with all the incidents of such ownership, and entitled to have such shares transferred to her on the stock books of said corporation.

Referring again to the claims of William E. Gosser and Frank Gosser, it is not to be believed that Charles F. Gosser, the decedent, would segregate the larger part of his estate for the sole purpose of dying intestate as to the part so segregated. Such in legal effect is the claim of the said defendants. They say (1) there was no completed gift to Fannie N. Burns, (2) there is no bequest to her of the 502 shares by the will of said testator, and (3) said shares are expressly exempted from passing to the residuary legatees, as a part o£ the residuum of his estate, by the plain and explicit language of the will itself; that therefore testator died intestate as to these shares.

The presumption of law is otherwise. If a man takes the pains to make a formal will, disposing of his estate, the presumption is that by such will he meant to dispose of all of his estate, and to overcome such presumption it must appear clear that he did not dispose of it or of some part of it. So far as any pronounced intendment of the testator appears by his will, Fannie N. Burns, Mrs. Chester A. Smith, Ruth Gosser, and the widow and children of Clarence Gosser, deceased, are the beneficiaries and the only beneficiaries entitled to share in the distribution of his estate. He had his whole estate in mind when he wrote his will. Nothing was' omitted, so that if he died intestate as to any part of his property it is because he failed to use apt terms to dispose of the same, and to carry out the intention that seems so plainly apparent. It seems to be conceded by all parties that the intention of the testator is clearly ascertainable, and that if there is to be any failure in carrying this intention into effect it is because there is no authority on the part of the courts, under the settled rules of law, to declare and enforce such apparent intention.

To recapitulate, without further discussion, we find and hold:

1. There was a completed gift of said 502 shares of stock to the defendant Fannie N. Burns, by indorsement and delivery to her of the stock certificates representing the same.

2. That the language of the will of said decedent relative to such shares, if not expressly dispositive, clearly shows the intention of the testator that the same should be the property of said Fannie N. Burns, and is sufficient to convey title to said Fannie N. Burns, if for any reason the prior gift should fail in the lifetime of the donor. Moon, Admr., v. Stewart et al., 87 Ohio St., 349.

3. That the testator did not die intestate as to any of the property owned by him at his decease.

Decree accordingly.

Houck and Shields, JJ., concur.


text:
    Loney et al. v. Hall.

      Contempt—■Presumption of innocence—Degree of proof to convict —Review of finding — Weight of evidence.

    1. The judgment of a trial judge who has passed upon the sufficiency and weight of the evidence will not be disturbed, where the evidence is such that different minds might reach different conclusions.
    2. A proceeding for contempt is quasi-criminal in its nature, with the presumption in favor of the innocence of the defendant, and conviction can be had only on an affirmative showing of guilt.
    (Decided October 25, 1917.)
    Error : Court of Appeals for Knox county.

      Mr. F. 0. Levering and Mr. R. L. Carr, for plaintiffs in error.

      Mr. L. C.- Stilhvell and Messrs. Greer & Cromley, for defendant in error.
   Houck, J.

Error is here prosecuted in which it is sought to reverse the finding and judgment of Hon. Park B. Blair, judge of the common pleas court of Knox county, Ohio, in his dismissal of contempt proceedings filed by plaintiffs herein against the defendant for alleged violation of a judgment heretofore rendered in the common pleas court in which said J? C. Hall was enjoined and restrained from engaging in the hardware business in Danville or Buckeye City, Ohio.

The proceedings in contempt were heard by the trial judge upon the evidence offered, which is now before us in the form of a bill of exceptions. The trial court dismissed the action in contempt, and held the accused, J. C. Hall, guiltless. By this proceeding in error it is sought to reverse the judgment of the court below.

It is claimed by counsel for plaintiffs in error that the defendant violated the injunction heretofore granted by the common, pleas court and that he is now engaged in the hardware business. Counsel for defendant in error insist that said Hall is not engaged in the hardware business, but is conducting what is known as a racket store.

The only question’to be determined in this case is one of fact, namely: Is J. C. Hall now engaged in the hardware business in the village of Danville or Buckeye City, Ohio? This question was' sub-' mitted to the trial judge. It was a question of fact, and he was called upon to and did pass upon not, only the sufficiency but the weight of the evidence.

The rule of law is well known that a reviewing court will not reverse a judgment on the weight of the evidence unless it manifestly appears that the judgment is against the weight thereof. We have read the testimony of all the witnesses, as embodied in the bill of exceptions, and we find the evidence to be conflicting; different minds might arrive at different conclusions therefrom; and as a matter of fact it took this court’ some time to reach a unanimous conclusion as to whether or not the defendant had violated the former order and judgment of the common pleas court.

It follows that where a trial judge, who has the same power, authority and right to determine as to the sufficiency as well as the weight of the evidence as a jury, has determined a case in which different minds might arrive at different conclusions, or different results, from the same evidence, a reviewing court has no authority to reverse such judgment, unless upon the whole record it is clearly manifest that a different judgment should have been rendered. This we do not find.

We are of the opinion, this being a quasi-criminal case, that the evidence that the one charged with contempt is guilty should be clear, positive and convincing, before a court shall so find. We think the rule of evidence in cases such as the one now under review requires stronger proof in order to find one guilty of contempt than simply a preponderance. In fact, in a quasi-criminal proceeding, such as the one at bar, the presumption is all in favor of the person charged with the offense, namely, in favor of innocence. In such a case it must affirmatively appear in the record that the person so charged with contempt is guilty.

Applying this rule of law to the facts as established by the evidence in the bill of exceptions, after. a careful examination of the entire record in this case,.we are bound to and do arrive at the conclusion that the judgment of the trial judge in the present case is right and should be affirmed.

Judgment affirmed.

Powell and Shields, JJ., concur.


text:
    Yunker v. The State of Ohio.

      Criminal law—Depositions of witnesses — Section 13668, General Code — Inapplicable to trial on affidavit—Sale of misbranded flavoring extract—■Variance — Identity of purchaser.

    1. Section 13668, General Code, authorizing the taking of depositions by an accused or the state, has no application when a prosecution is had before a justice of the peace, but applies only when an issue of fact is joined upon an indictment.’
    2. Where under a criminal statute an offense consists in making an illegal sale, the identity of the purchaser is not an .essential element of the offense.
    (Decided December 15, 1917.)
    Error: Court of Appeals for Shelby county.

      Mr. Charles C. Hall, for plaintiff in error.

      Mr. Joseph McGhee, attorney general, and Mr. S. L. Connors, for defendant in error.
   Kunkle, J.

Plaintiff in error, Charles J. Yunker, was charged, tried and convicted before C. R. Hess, J. P., of Clinton township, Shelby county, Ohio, with selling to Stanley Bryan a certain quantity of an imitation vanilla extract, for which no standard exists, which was not labeled “artificial” or “imitation,” and the formula printed, in the manner provided for the labeling of “compounds” or “mixtures” and their formulae, in this, to-wit: The word “artificial” and the formula were not printed upon the package as required by law.

Error was prosecuted to the court of common pleas and the judgment of the justice of the peace was affirmed.

Error is now prosecuted to this court from the judgment of the court of common pleas.

Various errors are assigned in the petition in error, but we will confine ourselves to the three chiefly relied upon by counsel for plaintiff in error in presentation of the case.

1. That the trial court erred in refusing to issue a commission, upon the application of plaintiff in error, to take the testimony of Joseph O. Dea in the state of New York.

Section 10, Article 1 of the Constitution, in brief, specifies that provision may be made by law for the taking of the deposition by the accused or by the state, to be used for or against the accused, of any witness whose attendance cannot be had at the trial, always securing to the accused the means and opportunity to be present in person and with counsel at the taking of such deposition.

The above constitutional provision merely au-' thorizes the legislature to make provision for the taking of a deposition.

It is optional with the legislature to make such provision.

By virtue of this provision the legislature of this state adopted_Section 13668, General Code.' This section provides that “When an issue of fact is joined upon an indictment and a material witness for the defendant or for the state resides out of the state, or, residing within the state, is sick or infirm or about to leave the state or is confined in prison, such defendant or the prosecuting attorney may apply, in writing, to the court or the judge thereof in vacation, for a commission to take the deposition of such witness or witnesses. The court or judge may grant such commission and make an order stating in what manner and for what length of time notice shall be given to the prosecuting attorney or to the defendant before such witness or witnesses shall be examined.”

It appears from a reading of this section that even when an issue of fact is joined upon an indictment a discretion is reposed in the trial court as to whether such application should or should not be granted.

A reviewing court would therefore not be justified in reversing the ruling of the trial court thereon unless it clearly appeared from the record that the trial court had abused its discretion in refusing such request.

The record in this case does not disclose such a state of facts.

It being optional with the legislature to make provision for the taking of such depositions the trial court could grant such application only in the cases specified by the legislature.

The legislature by Section 13668 limited the court’s authority to grant such application to cases wherein an issue of fact is joined upon an indictment.

No indictment was returned in this case. No indictment could be returned before a justice of the peace.

The issue of fact was joined upon an affidavit, not an indictment, and we are of opinion that for this reason the justice did not err in overruling the application for the commission.

2. It is also claimed by counsel for plaintiff in error that the affidavit in question should have charged that the sale was made to The Venus Chocolate Company, instead of to Stanley Bryan, the agent and employe of The Venus Chocolate Company.

From an examination of the Ohio authorities cited in the brief of counsel for defendant in error we are clearly of opinion that the offense in question consisted of making the illegal sale.

The identity of the purchaser is therefore not an essential element of the offense, and we do not think a material variance exists as claimed by counsel for plaintiff in error.

3. It is further claimed that the article in question was sold to The Venus Chocolate Company as imitation vanilla; that said company knew exactly what they were securing; that the record fails to show that the proper label was not on this package when the same arrived in Sidney, and that therefore the judgment in this case is clearly against the weight of the evidence.

We have-carefully read the record in this case in so far as it relates to the grounds of error urged by counsel for plaintiff in error.

We shall not undertake to discuss the testimony in detail, as counsel are familiar with the same, but from an examination of the record we would not feel justified in' finding that the judgment is • against the manifest weight of the evidence.

After a careful consideration of the record and authorities, we find no error in the record which we consider prejudicial to plaintiff in error, and the judgment of the court of common pleas court will be affirmed and the cause remanded for execution.

Judgment affirmed.

Allread and Ferneding, JJ., concur.


author: Gorman, J.

text:
    Omin v. The Baltimore & Ohio Southwestern Railroad Co.

      Statute of limitations—■Federal Employers’ Liability Act—Condi-, tion attached to right to sue — Construction of federal statutes by state courts—Rule as to following construction adopted by federal courts.

    1. The rule is universal that the construction of the federal statutes by the federal courts should be followed by the state courts in construing the same statutes.

      2. The provision in the Federal Employers’ Liability Act that no action shall be maintained under the statute unless commenced within two years from the day the cause of action accrued is not an ordinary statute of limitations. It affects the right and not the remedy. A failure to bring such suit within the two year period cannot, therefore, be excused by showing a promise on the part of the defendant to provide employment and care for the injured employe, in consideration of his not bringing suit, and a subsequent breach of such promise on the part of the employer. •
    (Decided March 5, 1917.)

      Error: Court of Appeals for Hamilton county.

      Messrs. Bettinger, Schmitt & Kreis, for plaintiff in error.

      Messrs. Harmon, Colston, Goldsmith & Hoadly, for defendant in error.
   Gorman, J.

This proceeding in error is brought to reverse a judgment of the common pleas court, wherein an instructed verdict was returned in favor of the defendant.

The action was one to recover damages for personal injuries said to have been received by the plaintiff, Charles Omin, on February 17, 1912, while employed by the defendant company as a freight truckman.

The defendant by answer denied generally all the allegations of negligence set out in the petition. In a second defense it alleged that at the time of the accident Omin was employed by it in commerce among the several states, and that the action was not brought within two years from the date on which it occurred — that being the time limit for the commencement of actions under the Federal Employers’ Liability Act.

By way of reply to this second defense, plaintiff alleged that immediately after leaving the hospital where he was confined on account of his injuries he threatened to institute suit to recover damages for his injuries, and that thereupon the defendant promised and agreed that if he would not bring suit it would provide him with such employment as his physical condition would warrant and would take care of him as long as he was disabled; that pursuant thereto the defendant did employ him in the office of its depot-master until July 17, 1914; but that ever since said date, although the disability of the plaintiff on account of his injuries still existed, the defendant refused to give him employment or to take care of him as it had agreed to do, and that by reason thereof defendant is estopped from pleading said statute.

At the close of the plaintiff’s testimony the trial court, as above stated, instructed the jury to return a verdict for the defendant, among other reasons because the plaintiff had failed to bring his action within two years from the time his injuries occurred.

Several errors are complained of by plaintiff in error, but we deem it unnecessary to pass upon any other question than that of whether or not the action was brought in time.

Under the Federal Employers’ Liability Act (35 Stats, at Large, 66, Section 6; Section 8662, U. S. Comp. Stats., 1913), passed April 22, 1908, it is provided that “no action shall be maintained under this act unless commenced within two years from the day the cause of action accrued.”

The plaintiff seeks to avoid the effect of this statute by pleading the conduct of the defendant in giving him employment upon the condition that he forebord to bring suit. But it has been held in several well-considered cases that the statute just cited confers a right to which is attached a condition that it be enforced within the stated period, two years. The act creates a liability where none existed theretofore, and it takes away defenses which were formerly available. Coupled with the enlargement of the liability of carriers is the limitation that no action shall be maintained under the act unless commenced within two years from the time the cause of action accrued. This condition in the statute is not an ordinary statute of limitations. It affects the right and not the remedy. If it were merely a statute of limitations, we have no doubt that the defendant would be estopped from setting up the failure of the plaintiff to bring his action within two years by reason of its agreement with him to give him employment upon the condition that he forebore to bring an action to recover damages. The time within which the suit must be brought operates as a limitation of the liability, and not of the remedy alone. It is a condition attached to the right to sue at all. Time has apparently been made of the essence of the right, and the right is lost if the time is disregarded. The liability, which did not exist apart from the statute, and the remedy are created by the same statute, and the limitations upon the plaintiff’s right to maintain the action are to be treated as limitations of the right and not limitations upon the remedy.

This question was squarely presented to the supreme court of Michigan in Bement v. Grand Rapids & I. Ry. Co., 194 Mich., 64, 160 N. W. Rep., 424. To the same effect are the decisions in Morrison v. B. & O. Rd. Co., 40 App. Cas. D. C., 391, and Partee v. St. Louis & S. F. Rd. Co., 204 Fed. Rep., 970.

It is admitted in this case that the right of the plaintiff to recover, if he had a right, arose under the Federal Employers’ Liability Act, in that he was engaged while employed by the defendant in interstate commerce. It has been a universal rule, adopted by all the states, that the construction of the federal statutes by the federal courts should be followed by the state courts in construing the same statutes. It would appear to us that the application of this rule laid down in the cases cited operates to bar the plaintiff’s right to recover, for the reason that his right was lost by the lapse of time, and not because he failed to invoke the remedy within the two years.

We deem it unnecessary to pass upon the other alleged questions of error in the case. For the reasons stated the judgment of the court below will be affirmed.

Judgment affirmed.

jones, P. J., and Hamilton, J., concur.


text:
    Blackburn v. Peoples.

      Service of summons—Nonresident defendant—Foreclosure of common-law lien.

    No authority exists for issue or service of summons outside of the county upon a nonresident defendant who has been sued foi foreclosure of a common-law lien.
    (Decided October 25, 1917.)
    Error: Court of Appeals for Knox county.

      Mr. Wm. M. Koons and Mr. Wm. G. Koons, for plaintiff in error.

      Mr. J. W. Barry, for defendant in error.
   Houck, J.

This suit was originally commenced in the common pleas court of Knox county, the plaintiff in error being the plaintiff below and the defendant in error being the defendant below.

The cause of action set forth in the petition was for the foreclosure of a common-law lien claimed to be held by the plaintiff on a certain Ford automobile owned by the defendant, upon which plaintiff had made certain repairs and performed work and labor. Plaintiff claimed there was due him for such repairs and such labor the sum of $272.57. The prayer of the petition was for the recovery of said $272.57 and for an order of court to issue to the sheriff of Knox county, Ohio, directing him to advertise and sell said machine and apply the proceeds of said sale in payment of the amount as found due the plaintiff, and for general relief.

The plaintiff resides in Knox county, the. defendant in Morrow county, Ohio. A summons was issued on said petition directed to the sheriff of Morrow county, Ohio, and personal service was had upon the defendant, Webb Peoples. A motion was filed by defendant attacking the jurisdiction of the court on the ground that defendant was a resident of Morrow county, Ohio, and that service had been made in that county. The court of common pleas sustained said motion, and to the sustaining of same error is prosecuted to this court.

The defendant in error contends that the petition in error should be dismissed because there is no final order or judgment entered in the case from which error can be prosecuted. He further insists that the motion to quash the service of summons was properly sustained by the trial judge.

Passing the question as to whether or not the judgment in this case is one from which error can be prosecuted, and going to the merits of the case, we know of no authority in law in foreclosure of a common-law lien for the issuing of a summons outside of the county in which the plaintiff resides. The summons in this case was served upon the defendant, who was not a resident of the .county in which it was issued, and it was not served upon him within the county in which it was issued, and we are bound to hold and do hold that the common pleas court had no jurisdiction over the person of the defendant in the present case.

Counsel for plaintiff in error contend and urge that because a summons can be issued to an adjoining county in a foreclosure proceeding that it necessarily follows that the same procedure is proper in the foreclosure of a common-law lien. In the case of the foreclosure of a mortgage the statute clearly provides for such procedure, but we know of no statute with reference to common-law liens, and we have been unable to find an adjudicated case wherein, it was held that a summons could be issued to an adjoining county where it was sought to foreclose a common-law lien.

Thus it follows that the finding of the common pleas court will not be disturbed in the judgment entered in this case.

Judgment affirmed.

Powell and Shields, JJ., concur.


author: Lieghley, J.

text:
    Standen v. The State of Ohio.

      Sabbath desecration — Moving picture show—Theatrical performance.—•Section 13049, General Code.

    Motion picture shows fall within the provisions of Section 13049, General Code, making it unlawful to exhibit a theatrical or dramatic performance on Sunday.
    (Decided October 24, 1917.)
    Error: Court of Appeals for Medina county.

      Messrs. Sieber & Sieber, for plaintiff in error.

      Mr. Fred O. Smoyer and Mr. A. B. Underwood, for defendant in error.
   Lieghley, J.

For convenience William Standen will hereinafter be called “defendant” and the State of Ohio “plaintiff.”

William Standen was charged by affidavit before a justice of the peace in and for Wadsworth township, Medina county, Ohio, with unlawfully exhibiting a theatrical performance, to-wit, a motion picture show, on Sunday. The defendant waived examination and was bound over to the probate court of Medina county. Trial was had in said court without the intervention of a jury and resulted in conviction and sentence. Error was prosecuted from said court to the court of common pleas, which resulted in an affirmance of the judgment below. Error is prosecuted to this court to reverse the judgment of the court of common pleas.

The affidavit was founded upon Section 13049, General Code. Complaint is made that a moving picture show is not comprehended within the language of said statute, a “theatrical or dramatic performance,” and that therefore said conviction is contrary to law.

Section 13049, General Code, in substantially the present language of the act, was enacted in 1881, which was long before the moving picture show was generally known. For this reason it is urged that a moving picture show was not contemplated at the time of the enactment and cannot now fairly be said to be comprehended within its language. This section was amended in 1911, after show houses had become prevalent, in respect to Sunday baseball, but no phrase or clause was added to expressly include the moving picture. It is therefore suggested, on the one hand, that the act having received recent consideration of the legislature and no mention having been made in the act of moving pictures, it was not intended to control and regulate the same; and, on the other hand, it is urged, that, upon consideration of the act by the legislature in 1911, it is just as reasonable to assume that it was concluded that the language theretofore employed in the act fully comprehended and covered the subject.

What does the phrase “theatrical or dramatic performance” mean? According to Webster, “theatrical” means “Of or pertaining to a theater or scenic or dramatic representations.” Standard Dictionary defines it “Of or pertaining to the theater; of the nature of dramatic or scenic representation; befitting the stage; dramatic.” Century Dictionary defines it “Of or pertaining to a theater or scenic representations; resembling the manner of dramatic performers.”

Quoting from the syllabus in the case of Kalem Co. v. Harper Bros., 222 U. S., 55:

•* “An exhibition of a series of photographs of persons and things, arranged on films as moving pictures and so depicting the-principal scenes of an author’s work as to tell the story is a dramatization of such work.”.

The conclusion irresistibly follows that one who conducts the exhibition is exhibiting a theatrical or dramatic performance. In the Kalem case it was held that a moving picture film of scenes and descriptions of certain portions of General Lew Wallace’s book “Ben Hur” was an infringement of the copyright upon said book and that “Ben Hur” was dramatized by the moving picture film. The* opinion is written by Mr. Justice Holmes of the supreme court of the United States and attention is called to the language employed by him as bearing upon a definition of what “a theatrical and dramatic performance” is.

In the case of Ex parte Lingenfelter, 64 Tex. Cr., 30, at page 45, (142 S. W. Rep., 555, 562), is the following language:

“Being of the opinion that a moving picture show of the character and kind presented in this state, comes within the definition of amusements of like character, kind and species as a theater, and while not a theater, yet it is of the same genus.”

We are satisfied that the rule of statutory construction in this state permits and requires the conclusion that a moving picture show is included within the language of the statute, and that the statute was intended to operate to forbid the misr chief intended to be remedied thereby, i. e., to prevent certain public exhibitions on Sunday.

“A statute may include by inference a case not originally contemplated when it deals with a genus within which a new species is brought.” State v. Cleveland, 83 Ohio St., 61.

We feel that this judgment should be affirmed. In view of the fact that the court of appeals of Ross county has decided the same question and published its opinion, we deem it unnecessary to prolong this opinion. (Myers v. State, 5 Ohio App., 156.) Motion to certify record in the Myers case was overruled by the supreme court, April 25, 1916.

While it is claimed that the court of appeals did not support its opinion in the above case by citation of authorities, we think the reasoning of that court is amply supported by the authorities herein cited.

See also State v. Morris, 1 Boyce (Del.), 330, 76 Atl. Rep., 479; Moore v. Owen, 58 Misc., 332, 109 N. Y. Supp., 585, and Jacko v. State, 22 Ala., 73.

The judgment is affirmed at the costs of plaintiff in error.

Judgment affirmed.

Grant and Carpenter, JJ., concur.


text:
    Hogan, Atty. Gen., etc. v. The Empire State Surety Co. et al.

      Surety companies—Deposits with state insurance superintendent— Section 9510, General Code — Creditors entitled to such deposits, when — Contractor's bond — Federal contract performed* in Ohio.

    Where a federal act extending liability of a surety, upon a contractor’s bond, to the creditors of the principal contractor; for material and labor under the principal contract, fixes the jurisdiction over the enforcement of the rights of the creditors to the place where the contract is to be performed, and the contract is to be performed in Ohio, the contract of the contractor with his surety should be regarded as one for the transaction of business in Ohio. Under such circumstances, the creditors of the contractor, growing from the performance of the contract in question, are entitled to the benefit of a' deposit made by the surety under Sections 9510 and 641, General Code.
    (Decided April 1, 1916.)
    Appeal: Court of Appeals for Franklin county.

      Mr. M. J. Wright and Messrs. Booth, Keating, ■Peters & Pomerene, for the insurance department of New York.

      Messrs. Tolies, Hogsett, Ginn & Morley; Messrs. Hughes & Tripplehorn; Mr. Russell K. Bedgood; Messrs. Cable & Cable; Messrs. Mackenzie & Weadock; Mr. Ralph Mackenzie; Mr. C. J. Brotherton and Mr. Paul T. Landis, for intervenors.
   Kunkle, J.

This is an action wherein Timothy S. Hogan, as attorney general, brought suit under Section 641, General Code, to determine the rights of all persons claiming an interest in and to a certain deposit of $50,000, made by The Empire State Surety Company, a New York corporation, with the Superintendent of Insurance of Ohio, in order to obtain the right to transact the business of indemnifying employers and others in the state of Ohio.

Certain parties intervened, claiming to be creditors of Mark P. Wells, a contractor under the United States government for the construction, extension, remodeling and repair of a post office building at Lima, Ohio, and asserting that said The Empire State Surety Company had become surety for said Mark P. Wells upon a bond given to the United States government in pursuance to an act of congress approved February 24, 1905, which said bond was, among other things, conditioned upon said Mark P. Wells promptly making all payments to persons supplying him with labor and material in the prosecution of the work contemplated in said contract.

Some of the intervening creditors, among whom was Grainger & Company, reduced their claims to judgment in an action in the United States district court for the western division of the northern district of Ohio.

To the intervening cross-petitions Frank Hasbrouck, superintendent of insurance of the state of New York, and Frederic G. Dunham, special deputy superintendent of insurance of the state of New York, filed a joint answer claiming the right to receive and administer the said fund of $50,000.

Grainger & Company demurred separately to each paragraph and defense of the joint answer of said Hasbrouck and Dunham.

This demurrer was sustained by the lower court. Final judgment was rendered, and thereupon the case was appealed to this court.

We have carefully considered the authorities cited in the very exhaustive briefs filed by counsel.

We shall not attempt to discuss or distinguish in detail the authorities so cited, but will merely announce the conclusion at which we have arrived after a careful study of such authorities.

The federal statute-referred to by counsel extends the liability of the surety upon a contractor’s bond to the payment of the claims of the creditors of the contractor for labor and material furnished under the principal contract. In view of the federal statute and the liability thereby created, such creditors of the principal contractor would become policy holders within the purview of Section 9510, General Code.

It is evident, however, that the deposit provided for in Section 9510, General. Code, was intended to be held for the benefit of the policy holders whose rights grow out of contracts made and business transacted within the state of Ohio.

It is true that the contract between Wells and the United States government for the improvement of the post office building at Lima, and the contract of The Empire Surety Company guaranteeing the performance thereof, were, according to the averments of the said answer, executed outside the state of Ohio.

These contracts were, however, to be performed within the state of Ohio, and the parties contemplated that the contracts for labor and material would be performed within the state of Ohio.

The federal act extending liability of the surety, upon the contractor’s bond, to the creditors of the principal contractor, for material and labor under the principal contract, fixes the jurisdiction over the enforcement of the rights of the creditors to the place where the contract is to be performed.

The fact that the United States government has control over the post office site in question by cession from the state of Ohio does not supersede the jurisdiction of the state over .the business involved in the performance of the contracts for labor and material.

Under this situation we think the contract of Wells with The Empire State Surety Company should be regarded as one for the transaction of business in Ohio, and that the creditors of Wells, growing from the performance of the contract in question, are entitled to the benefit of the deposit made by The Empire State Surety Company, under the provisions of Sections 9510 and 641, General Code.

We have carefully considered all the questions discussed in the brief of counsel for the insurance department of the state of New York, but are of opinion that the demurrer to the answer of Hasbrouck and Dunham should be sustained.

Demurrer sustained.

Ferneding and Allread, JJ., concur.