text:
    CHARGE TO JURY.
    [Cuyahoga (8th) Circuit Court,
    December 22, 1905.]
    Henry, Marvin and Winch, JJ.

      Cleveland Electric Ry. v. John Stanton.
    Sufficient Instruction to Disregard Evidence as to Injury not Averred.
    When evidence has been introduced concerning an injury not averred in the petition, and counsel for plaintiff subsequently asked the court to instruct the jury to disregard any claim made upon account of that particular injury, whereupon the court said to the jury: “Very well, gentlemen, counsel for plaintiff requests that the testimony regarding plaintiff’s deafness be withdrawn from your consideration,” it is a sufficient charge to disregard.
    Error.

      Squire, Sanders <& Dempsey, for plaintiff in error.

      Kart, Canfield <& Canfield, for defendant in error.

       Affirmed, no op., Cleveland Elec. Ry. v. Stanton, 75 Ohio St. 568.

   WINCH, J.

This was a personal injury damage ease in which the verdict was returned for the plaintiff.

The errors complained of have required an examination as to rulings on evidence, the weight of the evidence and the charge.

Only one ruling on evidence has been called to our attention. The court allowed the plaintiff to testify, over the objection of the defendant, that the plaintiff’s hearing was affected. Subsequently counsel for plaintiff requested the court to instruct the jury to disregard any claim made on account of deafness, whereupon the court said to the jury: “Very well, gentlemen, counsel for plaintiff requests that the testimony regarding Stanton’s deafness be withdrawn from your consideration.”

It is claimed that evidence as to deafness was not admissible under the petition in which it is alleged:

“Plaintiff says that said car started suddenly, and with a severe jerk and threw him off said ear, injuring his hip and head, and injuring him all over his body. Plaintiff says that he was then taken to a hospital where he remained about three months and that ever since said injury has been under the constant care of a surgeon, and has not fully recovered from the injury to his hip, and that he is still lame and compelled to use crutches; and that by reason of said injuries received, the injury to his hip will be permanent. ’ ’

Doubtless under the allegation that plaintiff's head was injured, he might prove injury to an organ thereof, to-wit, his ear. . Perhaps, as the only permanent injury complained of was his1 hip, he might not be permitted to show a permanent injury to his ear, resulting in deafness, if he claimed that the deafness was permanent. However, we think the request of his counsel, stated loosely to the jury by the trial judge, as it was, still amounted to taking from the jury all consideration of the question of deafness, and there is no suggestion made that the verdict was excessive; and its smallness, $600, leads us to believe that the jury did not include in it any compensation, for the deafness of which they had heard.

As to the weight of the evidence, there is some conflict in it, such as we find in most personal injury cases; plaintiff claimed that as the ear on which he was riding slowed up at the crossing .of Ridge avenue on. Lorain street, he went upon the back platform of the car for the purpose of alighting from it when it came to a full stop. He had a dinner pail in one hand and a shovel in the other; he says that passengers got on at Ridge avenue, and before the ear fully stopped and before he had time to alight, it started suddenly and with a severe jerk threw him from the platform to the ground.

.Defendant claimed that plaintiff attempted to alight from the car while it was in motion, and did so in such a stupid manner that he was thrown to the ground by reason of his own negligence. This issue of fact was clearly made and exhaustively presented to the jury; they found for the plaintiff and we think the record exhibits sufficient evidence tending to prove the plaintiff’s claim to warrant such finding and that it' would be improper for this court to • say that the verdict was clearly against the weight of the evidence.

It is said that the charge was erroneous in one paragraph quoted in plaintiff in error’s brief, in which it is claimed that the trial judge assumed that the car had slowed down and was suddenly started up. We think this paragraph of the charge should be considered in connection with the balance of the.charge on the same subject which immediately precedes it and, when so considered, the charge appears to us to be without fault. The criticism of the one paragraph referred to is hardly fair; the court, just before using the language complained of, had said:

“The allegations of negligence upon which this action is based, as I have already stated, is the sudden starting of the ear at or near Ridge avenue, and that this sudden starting came after the ear had slowed down and plaintiff had taken a position near the steps upon the rear platform of its car for the purpose of alighting therefrom when it came to a stop. * * * I may say to you that if you find from the evidence that Stanton was not thrown from the car in, this manner, that there can be no recovery in this action for him, and your verdict shall be for the defendant.”

We find no prejudicial errors in the record, and the judgment is affirmed.

Henry and Marvin, JJ., concur.


source: Caselaw Access Project

author: WINCH, J.

license: Public Domain

text:
    CHARGE TO JURY.
    [Cuyahoga (8th) Circuit Court,
    December 22, 1905.]
    Henry, Marvin and Winch, JJ.
    Kornfeld Exrx. v. Kornfeld.
    Sufficient Caution to Jury to Disregard Questions Improperly Asked.
    A statement by the court that counsel has persistently asked improper questions, accompanied by a caution to the jury to disregard such questions and to draw no inference as to what the answer would have been had the witness been permitted to answer them, cures any error because of the misconduct of counsel.
    Error.

      Thomas Robinson, for plaintiff in error.'

      Kerruish, Chapman & Kerruish, for defendant in error.
   WINCH, J.

This proceeding in error was brought to reverse a judgment recovered by defendant in error against iffaintiff in error on an account for personal services rendered to plaintiff in error’s testator during his lifetime, at an agreed price of ten dollars per week. The answer admits the employment, but denies the correctness of the account, alleging that it had been “balanced, settled, satisfied and paid.” The evidence fully shows without contradiction, that the rate per week was $10. The only real issue for the jury to determine was whether the plaintiff had got his money as he went along.

It is said that the judgment should be reversed because of error in ruling out certain evidence, because the verdict was against the weight of the evidence, because of misconduct of attorney for plaintiff below in the trial of the ease, and for error in the charge.

The only error in ruling on evidence called to our attention is the exclusion of a portion of testator’s will offered by defendant below as tending to show provision for any possible indebtedness that might have accrued to plaintiff from the estate.

To our minds the will as offered tended to the opposite conclusion. At any rate it threw no light upon the issue being tried and was properly excluded.

Nor can we say that the verdict was against the weight of the evidence, The bill of exceptions shows that the question of the credibility of the witnesses was particularly inquired into and, as they were before the jury which had the benefit of observing their conduct on the stand, we are loath to say that the jury was not warranted in reaching the conclusion stated in the verdict.

As to the misconduct of counsel the record discloses such abuse of a lawyer’s function as to require the rebuke it received from the trial judge, but while censuring counsel and cautioning the jury, the trial judge was of the opinion that the actions of witnesses, by provoking counsel, gave excuse for more or less of the alleged misconduct complained of.

The parties to this case were both Jews. I shall read from page 272 of the record to show the view taken by the trial judge of the misconduct complained of:

‘ ‘ Q. But isn’t it true that after this lady got married to her husband, a young fellow, a Gentile too—
“To which question counsel for defendant objected.
‘ ‘ The Court : I sustain the objection. Strike out the question so far as given.
“Mr. Robinson: And also it is misconduct on the part of the attorney on the other side.
“The Court: I sustain the objection! it is stricken out.
“Q. Did you come there in the guise of a Jewish Rabbi with a pair of scissors to circumcise her husband shortly after the old man’s death?
“To which question counsel for defendant objected; which objection was sustained by the court.
“Mr. Kerruish: Well, that is all.
“Mr. Robinson : Now, if the court please, I wish the court to caution Mr. Kerruish not to go on with that style of examination for the purpose of affecting the jury; it is misconduct right straight along. I ask the court not to caution him that that thing must be stopped.
“The Court: Your objection was sustained.
“Mr. Robinson : If the court please, that doesn’t make any difference. It seems to be persistent on the part of Mr. Kerruish to inject testimony irrelevant to the case in his question.
“Mr. Kerruish: Oh, no, you are doing that.
“Mr. Robinson: And that is the very thing that the Supreme Court rebuked him and reversed his case for, this persistent act, and Judge Neff did not caution him at the request of the attorney in his case. Now, I ask this court here, on the record of the Supreme Court case, to caution him not to indulge in that style of examination again.
“Mr. Kerruish: I ask this court to caution this counsel not to give way to childishness nor to foolishness.
“Mr. Robinson: Now, I object to that, if the court please, that statement in the presence of the jury. We want to know whether we have a lawyer here or a mountebank.
“The Court: It isn’t very easy, even for one who has no interest in the matter at all, to determine where propriety ends in this case or where impropriety begins. I think that during the progress of the trial questions must have been asked by counsel for plaintiff with full knowledge that they were not proper questions — a series of questions to the same witness and asked more than once. It seems to me any lawyer would know they are not proper — a whole series of questions objected to and the objections sustained — one question after another of the same character. I don’t impugn the purpose or motive of counsel, I can not do this, but they are improper. This last inquiry was improper. I can, not close my eyes to the character of man —the kind of man that was testifying, and the manner of his testimony, it was well calculated to provoke such questions as have been asked him, the objections to which have been sustained. Now I have nothing more to say so far as counsel are concerned. Now I will say to the jury that the jury has no right to infer, when a question is asked and not allowed to be answered, the jury has no right to infer that there is any fact in existence warranting that question. You have no right to infer that if it had been allowed to be answered the answer would have been one thing or another thing. Questions are asked by all lawyers that are improper, and, as a rule, they do it not intending to ask improper questions and without time to think, or under the impulse of the moment, or provocation of the situation; such questions are asked and the objection is sustained; the jury ought not to be influenced in the least by the fact that such question is asked; it is the answers to questions that make evidence for the jury, not the questions that are not answered. Now- let the jury bear in mind, as to all such instances in the conduct of this trial where questions have been asked on, either side by either counsel and not allowed to be answered. They impute nothing; they import nothing of fact. You look to the answers that are allowed to be made to questions and to them only. I do not mean by that that you are not to take into consideration the conduct of the witness. You are not to take into consideration or be influenced by the conduct of counsel on either side. Go on.
"Mr. Kerruish: Suppose we take another to the court’s ruling on the exclusion of this evidence?
"Mr. Robinson: Will you also note an exception on the part' of the defendant that the court did not caution Mr. Kerruish ?
"The Court: What’s that?
"Mr. Robinson: That the court did not caution Mr. Kerruish.
"The Court : You both have exceptions.
"Mr. Kerruish: Suppose we taken another to the court’s refusal to caution my friend here as I suggested.
"Mr. Robinson: Now there you go again — if Your Honor please.
"The Court: You may note his exception. Now go on with your testimony. ’ ’

The trial judge having witnessed the scenes complained of, saw fit, after cautioning the jury, to permit the trial to go on. The caution was couched in language sufficiently plain, and emphatic to guide the jury aright. "We must therefore assume that no prejudice resulted from the misconduct complained of.

The error alleged in the charge relates to what was said therein regarding the fact that the defendant below did not testify in the ease. She was an executor, but not thereby prevented from testifying; she was shown by the evidence to have knowledge of the facts of the case.

Reference was made during the trial to the fact that she had not testified, as well as to the fact that the plaintiff had not testified. The judge said to the jury that the plaintiff was not permitted to testify because he was suing the executor. He continued, very properly and accurately, and stated the conclusion the jury might deduce from that fact, if they found she must have had knowledge of the facts of the case. We see no error in this part of the charge, and finding no error the judgment is affirmed.

Henry and Marvin, JJ., concur.


text:
    WILLS.
    [Cuyahoga (8th) Circuit Court,
    December 22, 1905.]
    Henry, Marvin and Winch, JJ.
    Sampson W. Parsons et al v. Thomas Wass et al.

      1. Nuncupative Wills, Invalid as to Real Estate, Valid as to Personalty.
    The fact that a nuncupative will attempts to dispose of both real and personal property does not make it invalid as to the personal property.
    2. Witness to Whom it is Attempted to Make Devise May be Disinterested.
    When the witnesses to a nuncupative will are also devisees of real estate under it, but there is no evidence tending to show that at the time the will was made they expected to benefit from it, it is error for the court to direct a verdict declaring the will invalid.

      Kerruish, Chapman & Kerruish, for plaintiff in error.

      H. Remington, T. H. Johnson, C. R. Megerth, E. Hitchens, E. P. Wilmon and A. W. Lamson, for defendants in error.
   WINCH, J.

In the summer of 1900 Eobert Wass, then about ninety years old, and his aged wife Charlotte, were living together in a house on Central avenue, in Cleveland, Ohio. In the early part of August of that year the wife died and about six weeks thereafter Eobert Wass also died. So far as is known neither Charlotte nor Eobert had near relatives of their blood living in Cleveland or its vicinity. For some years before they died both suffered more or less from the infirmities of age, and their wants were largely attended to by Lucy Douglass and Isabella Mead, housewives who lived near Eobert and Charlotte’s residence.

On September 17 of that year, two days after Eobert’s death, said Isabella Mead and Lucy Douglass went before a notary public and reduced to writing certain utterances of Eobert Wass, alleged to have been made by him on the afternoon of September 14, the day preceding his death, which words so reduced to writing they then and there subscribed as the verbal last will of said Eobert Wass. On October 3d thereafter said paper writing was duly admitted to probate by the probate court of Cuyahoga county, Ohio, as the verbal last will and testament of Eobert Wass. By the provisions of said will Lucy Douglass and Isabella Mead, the witnesses thereto, were to receive certain real property and the remainder of his property was to be distributed as follows: five hundred dollars to Wesley Parsons and the residue remaining after the satisfaction of said legacy to the children of Harry Parsons, share and share alike. Wesley Parsons and Harry Parsons were nephews of Eichard Parsons, who was the first husband of Charlotte Wass.

Within two years after said will was admitted to probate certain persons claiming to be the heirs at law and next of kin to Eobert Wass, began proceedings in the court of common pleas of Cuyahoga county, to contest the will. Afterward they were joined in said contest by other persons claiming also to be related to Eobert Wass, by still others claiming to be related to Eobert’s deceased wife, Charlotte, from whom they allege most of Robert’s property came, and by the state of Ohio claiming that both Robert and Charlotte died without heirs or next of kin and that the property escheated to the state.

As shown, by the bill of exceptions, at the trial of the case in the common pleas court, counsel for the proponents of the will offered and read the will, as certified by the probate judge. He then said: “I’ll not read the testimony that was taken before the probate court. I -will now read the application for probate and the journal entry attached,” which he did, as also the certificate of the probate judge.

Thereupon the court asked the question: ‘ ‘ Is the testimony part of the record of probate?” And the bill of exceptions continues as follows: “By Mr. Bacon (of counsel for proponents) : Yes, but for the purpose of this hearing the admission to probate and the fact that it was admitted to probate makes a prima facie case for the defendants — the fact that it was offered and the journal entry and the order of the court. Well, I will read the testimony also.

By Mr. Wilmot: We object to that part of the record being offered. By the Court: We will determine all these things at once. You may proceed.

Thereupon Mr. Bacon in behalf of Wesley Parsons, Sampson W. Parsons, Henry B. Parsons, Jr., John T. P.arsons, Susan E. Turner, Mary T. Parsons, Martha A. Parsons and Cora E. Parsons read in. evidence the testimony taken upon application to probate the nuncupative will of Robert Wass, which is marked for identification Defendant’s Exhibit C. Said testimony is in the words and figures following, to-wit:

Then follows the said testimony in full.

Thereupon counsel for contestants moved the court to direct the jury to return a verdict that the paper writing here offered in evidence is not the valid will of Robert Wass, deceased.

“By Mr. Bacon. There is no proof that these people have any right in court. This will has been probated and nothing has been presented against it.
“By the Court: There proposition is that it is for the court to say whether or not there are some essential elements which are not present in this will.
“By Mr. Bacon: Before Yonr Honor passes upon that question we should like to make a motion.
“By the Court: It is not necessary. The defendants have introduced evidence and rested. The question is .whether they have any right upon their own showing, so I don’t think that question is pertinent. ’ ’

Thereupon, over objections of the proponents of the will the court directed a verdict, as requested, to which plaintiffs in error excepted, and judgment being entered, the case was brought here for review.

In this court plaintiffs in error, who were the “parties sustaining the will” in the common pleas court, contend that said court erred in directing a verdict for two reasons:

First. Because the testimony of the witnesses to the will, taken on its probate, was not properly before the common pleas court for its consideration and ought not to have been considered by it.

Second. Even considering said testimony, still the prima facie case, made by the will and probate remained sufficient to sustain the will until the contestants offered their evidence, as required by the statute Section 5864 R. S. (Sec. 12085 Q-. C.)

That the court may direct a verdict in a suit to contest a will, under certain circumstances, has been settled. Wagner v. Ziegler, 44 Ohio St. 60 [4 N. E. 705].

We are inclined to think it equally clear that the testimony of the witnesses to "the will, taken in the probate court, is no part of the evidence required to be offered by the proponent of a will, under Section, 5864, wherein it is provided that: ‘ ‘ He shall offer the will and probate and rest.” Ketteman v. Metzger, 23 O. C. C. 61 (3 N. S. 224).

But in this ease we have a record which shows that the proponents of the will read said testimony over the objection of the contestants. Having voluntarily offered such additional evidence, 'if its effect is to destroy the prima facie case made by the will and probate thereof, we think the parties reading said testimony must abide the consequences.

This brings us to a consideration of the second question raised by plaintiffs in error, that the effect of said testimony is not to destroy their prima facie case; and to understand the propositions made by defendants in error on this point, we must read the statute relating to nuncupative wills: Section 5991 E. S. (See. 10601 G. G.)

“Sec. 5991. A verbal will, made in the last sickness, shall be valid in respect to personal estate, if reduced to writing, and subscribed by two competent disinterested witnesses, within ten days after the speaking of the testamentary words; and if it be proved by said witnesses, that the testator was of sound mind and memory, and not under any restraint, and called upon some persons present, at the time the testamentary words were spoken, to bear testimony to said disposition as his will.”

It is said that in five particulars, as shown by said testimony of the attending witnesses, the law regarding verbal wills was not complied with:

1. It was not made during the testator’s last illness.

2. There was no animus testandi, or intention that the words spoken should operate as a testamentary disposition of property.

3. There was no rogatic testium, or calling upon persons present to bear testimony to such dispositions as a will.

4. The will is invalid because it .attempts to dispose of both real and personal property.

5. The attesting witnesses were not disinterested.

As to the first three objections, we dismiss them with the suggestion that the testimony of the attesting witnesses, which we have carefully read and considered, ended, though not strongly, to sustain the will, and should have been submitted to the jury, unless, for some other reason,. verdict was properly directed..

As to the fourth proposition, we find the authorities do not sustain it.

In- at least one ease in this state a verbal will disposing of both real estate, and personal property, was sustained as to the personal property, without reference to the question raised here. Skinner v. Blackburn, 2 Circ. Dec. 574 (4 R. 325).

The Supreme Court of Wisconsin, in the case of Davis, Will, 103 Wis. 455 [79 N. W. 761] held that under the statute of that state a nuncupative will is inoperative to transfer title to real estate, but say (page 457) “But this does not prevent such will from being effectual as to the personal property. McLeod v. Dill, 9 Fla. 451.”

In the case of Sadler v. Sadler, 60 Miss. 251, the verbal will under consideration attempted to pass both real and personal property. The probate of the will was demurred to, the first ground of demurrer being “because it assumed to convey real estate by nuncupation, and the court said that said demurrer was well taken, but went only to so much of the alleged will as undertakes to pass the realty. ”

See also Mulligan v. Leonard, 46 Iowa 692, and Offutt v. Offutt, 42 Ky. (3 B. Mon.) 162 [38 Am. Dec. 183],

The fifth objection to the will — that the attesting witnesses were not disinterested — has given us more trouble.

The law says that a verbal will shall be reduced to writing and subscribed by two competent, disinterested witnesses. The will itself and the testimony of the two witnesses to it, as taken in, the probate court and read in the common pleas court, discloses that the testator attempted to devise certain real estate to said witnesses. The probate judge certifies that before giving their testimony: “ On explanation, said Isabella Mead and Lucy Douglass, being mentioned in the verbal declaration of the testator, and benefited by having a devise made to them of a house and lot, voluntarily, and in open court, renounce all interest in the will, without prejudice to any claims that they might have against the estate, and thereby become competent witnesses.”

That the probate judge was in error as to the effect of this attempted renunciation, is settled by the case of Vrooman v. Powers, 47 Ohio St. 191 [24 N. E. 267; 8 L. R. A. 39].

That the witness as a matter of law, had no actual beneficial interest under the will, by reason of the attempted devise of realty to them, is settled by the statute itself, 5991, for the law provides that only personality shall pass under the verbal will.

The presumption is that these witnesses knew the law and therefore knew that the will was ineffectual to benefit them; in other words, they are presumed to have known at the time the testator was speaking to them, that they could not by any possibility receive from him the real estate which he said he gave them. This presumption is probably very slight, in, this ease; a consideration of it, however, leads up to the proposition urged with great force by defendants in error, that if the witnesses believe that they would be benefited by the will then they were not disinterested, within the meaning of the statute.

We do not attempt to decide this proposition, nor is it necessary to a determination of these proceedings in error. The record discloses no evidence as to the belief of the witnesses on this subject; the presumption that they knew the law was in nowise overborne, hence the trial judge was in error in deciding, if he did, that the witnesses were not disinterested and the will for that reason invalid. All the claims urged by defendants in error in support of the judgment based upon a consideration of the testimony of the attesting witnesses as certified by the probate court, appearing to us untenable, it seems that the trial judge was not warranted in directing a verdict, and for error in so doing, the judgment is reversed.

Henry and Maxvin, JJ., concur.


text:
    DAMAGES — EMINENT DOMAIN.
    [Medina (8th) Circuit Court,
    1905.]
    Henry, Marvin and Winch, JJ.
    Nypano Ry. v. Wadsworth Salt Co.
    1. Misconduct of Parties while Viewing Premises Sought to be Condemned for Railroad.
    When, upon a view of the premises, oneparty points out to the jury how it would he impossible for special damages to occur and the other points out how they might occur, both have been guilty of misconduct and the case should be re-tried.
    2. Substantial Injury Caused by Smoke, Noise and Sparks from Railroad Appropriation.
    In appropriation leases it is competent to take into consideration evidence of substantial injury and loss to the property (not common to the community at large) caused by smoke, noises and sparks occasioned by running locomotives and cars along the track in front of the property.
   WINCH, J.

This is a proceeding in error brought to reverse a judgment of the common pleas court of said county in an appropriation case wherein the railroad company sought to appropriate a strip of land off of one side of the salt company’s land for switch' purposes. The salt company claimed damages not only for the land taken, but also growing out of obstruction to the access to its premises and damages to its business of salt making by smoke and cinders from the railroad. The jury in the probate court awarded $250 for the land taken and $6,750 as damages to the residue of the tract.

It is claimed that said judgment should be reversed for three reasons:

First. Because the verdict is excessive and not sustained by sufficient evidence. On this point it is urged that the obstruction to access ivas slight and could be overcome at small expense, and that the jury must have given too much consideration to the claim of the salt company that its salt was soiled and rendered unsaleable by smoke from locomotives upon said switch.

It is established by the case of Railway Company v. Gardner, 45 Ohio St. 309 [13 N. E. 69], that in appropriation eases like this, it is competent to take into consideration evidence of substantial injury and loss to the property (not common to the community at large) caused by smoke, noises and sparks of fire, occasioned by running locomotives and cars along the track, in front of the property. Bearing this in mind, we find that the record exhibits evidence tending to sustain the verdict, and we are not disposed to reverse the judgment because the verdict is excessive.

Second. It is said that plaintiff’s sixth request to charge should have been given. It reads as follows:

“In this ease you were sent to view the premises in controversy herein. In making up your verdiet you should not consider as evidence any statements made to you during such view by any of the parties or witnesses herein or any statements of any one else. Nor should you consider as evidence anything you may have seen on such view of the premises where evidence of such fact or facts has been expressly excluded from evidence. ”

The first sentence .in this request is not only the law, but should have been given, if it stood alone, notwithstanding the record fails to show that the court’s attention had been called to the fact that statements had been made to the jury during its view of the premises.

The last sentence of Sec. 6429 R. S. (Sec. 11055 G. C.), reads:

‘ ‘ The expenses of taking the view shall be taxed in the bill of costs, and no evidence shall be given on either side at the taking thereof.”

Had the trial judge questioned counsel proposing this charge as to whether any statements had in fact been made to the jury during the view, and counsel had replied, “I don’t know, but there may have been, and as the statute is specific on the subject, I ask the court to charge according to it,” we are of the opinion that the trial judge would have recognized his duty and plaintiff’s right, and charged as requested.

But the second sentence in this request has given us more trouble.

The evidence of facts expressly excluded from evidence mentioned therein, has reference to testimony offered with regard to damages to the business of plaintiff from the blackening of salt by smoke and cinders.

Such evidence, offered by the salt company, was improperly excluded, as we think in view of the decision of the Supreme Court in the case of Columbus, H. V. & T. v. Gardner, supra. To be consistent, the trial judge should have charged as requested, but as we hold that it was error to exclude such evidence, it follows that the last sentence of the sixth request of plaintiff does not correctly state the law, and part of the sixth request being bad, it was not error for the court to refuse to give it.

This conclusion is reached by a majority of the court only, by construing the word “evidence” as used in Section 6429, to mean “testimony.”

Judge Henry is of the opinion, that the view can not be used by the jury as evidence, while the majority is of the opinion that the proceedings for appropriation of land are special proceedings and not a civil action, and that the jury, as assessors, are entitled to take into consideration what they may have learned on view, in arriving at the damages they may assess. (Shortly after this opinion was delivered the Supreme Court decided that Judge Henry was right.) Zanesville, M. & P. Ry. v. Boland, 76 Ohio St. 376 [81 N. E. 681].

Third. The motion for a new trial was based partly upon misconduct of the parties and the jury occurring at the view, and supported by affidavits showing that plaintiff’s counsel-first spoke to the jury, or some of them, calling their attention to the fact that from the construction of the salt company’s buildings smoke from locomotives could not enter to spoil the salt. The representatives' of the salt company thereupon directed the attention of members of the jury to salt which was dirty, intimating that the dirt came through windows higher up, but near the switch.

Thus both parties violated the positive injunction of the law. In such eases it will not do to say that the losing party was,’ equally guilty. It is better that the administration of the law be kept free from the least taint of improper practice, than that a verdict rendered under such circumstances be allowed to stand as a penalty upon one party leaving the other party to hold what he may have unduly obtained thereby. There are other methods of punishing the guilty, which should be resorted to by the trial court.

There was no error in excluding the contract offered in evidence by plaintiff.

For misconduct of parties and the jury on the view of the premises, the judgments of the common pleas and probate courts are reversed and the cause remanded to the common pleas court for further proceedings.

Henry and Marvin, JJ., concur.


text:
    ATTORNEY AND CLIENT — DAMAGES.
    [Cuyahoga (8th) Circuit Court,
    December 21, 1905.]
    Henry, Marvin and Winch, JJ.
    Lakewood (Vil.) v. George N. Shaver.
    1. Attorney May Bring Action Immediately upon Breach of Contract and Full Damages for Term of Employment.
    Upon the breach of a contract employing an attorney for a term of years, he may bring his suit immediately, and recover in one action his full damages to the end of the term for which he was employed.
    2. Elements of Damages in Action by Attorney on Breach of Contract.
    In assessing the damages for a breach of contract for the services of an attorney covering a period of years, where suit is brought before the expiration of the period of employment, the jury should consider the probability or improbability of the attorney being able to perform his part of the contract, as well as the likelihood that he would be able to earn money at other work, inconsistent with his employment under the contract.
    Error.
   WINCH, J.

This action was for breach of a contract for personal services entered into between the parties under and by virtue of a resolution of the council of the village of Lakewood authorizing the employment of G. N. Shaver as legal counsel for the village for two years at a salary of $1,200 per year, payable monthly, “the said Shaver to draw all ordinances, resolutions, contracts and other documents necessary for the management of the legal department of the municipal government of said village, when of said village, when requested by said council, shall prosecute and defend all civil cases wherein the village of Lakewood is plaintiff or defendant, and shall render opinions on legal questions pertaining to the business of said village when requested by said council.

The two years began May 4, 1904. On January 3, 1905, some changes having occurred in the personnel of the council, it passed a resolution annulling Shaver’s contract, and on, February 2, 1905, he brought his suit against the village, claiming the sum of $1,600.

It will be noticed that Shaver was discharged from his employment sixteen months before his contract was to terminate and brought his action some fifteen months before said time.

That he had a right to bring suit immediately upon breach of his contract of employment and recover in one action his full damages to the end of the term for which he was employed, even though the case was tried before the contract period had expired, is settled in Ohio. James v. Allen County, 44 Ohio St. 226 [6 N. E. 246; 58 Am. Rep. 821],

The court in charging the jury, however, as to the measure of damages, and in applying the rule above stated, instructed the jury that thé price agreed upon between the parties would measure the damages and that if they found for the plaintiff they should allow him one hundred dollars per month from the day of his discharge to the day of the trial and the same amount of one hundred dollars payable monthly from the day of the trial to the termination of the contract period, less any expenses they might find he would have had to incur for a stenographer, if he had continued in his employment.

We think this rule as laid down by the trial judge, left out some elements which the books give as going to the diminution of the contract price for.the time to elapse after the trial, which should not have been omitted; matters indeed uncertain and difficult to determine, but nevertheless to be submitted to the jury in such eases. For instance, the probabilities as to the plaintiff’s living until the termination of the term and remaining capable of performing his part of the contract.

The rule which we think should have been given to the jury is well stated in the ease of Cutter v. Gillette, 163 Mass. 95 [39 N. E. 1010], where the authorities are collected. The rule there given is the general rule applicable to ordinary employments. However, it sets forth clearly the matters to which we desire to call attention.

On page 97 the opinion in the case referred to reads:

"In estimating his damages the jury has the right to consider the wages which he would have earned under the contract, the probability of whether his life and that of the defendant would continue to the end of the contract period, whether the plaintiff’s working ability would continue, and any other uncertainties growing out of the terms of the contract, as well as the likelihood that the plaintiff would be able to earn, money in other work during the time. But it is not the law that damages which may be larger or smaller because of such uncertainties are not recoverable. The same kind of difficulty is encountered in the assessment of damages for personal injuries. All the elements which bear upon the matter involved in the prognostication are to be considered by the jury from the evidence in each case they are to form an opinion upon which all can agree, and to which, unless it is set aside by the court, the parties must submit; ’ ’

Now, the charge given by the trial judge in this case failed to submit to the consideration of the jury the probabilities as to the plaintiff’s continuing in life or continuing in ability to render the service contracted for. A lawyer’s ability to render service depends not alone upon the state of his health, but upon his continuing as a member of the bar, a matter over which the courts have control by suspension or disbarment. We think that with respect to these two elements, the case of a lawyer under contract to render legal services generally, for a specified length of time, but not intended to. take all his time, is not to be distinguished from that of any other employe. See McCammon v. Peck, 6 Circ. Dec. 504 (9 R. 589). With regard to the likelihood that he would be able to earn money in other work during the time, we feel that upon principle and authority the case of an attorney is to be distinguished.

Two eases decided by the Supreme Court of Minnesota make clear this distinction. The case of Williams v. Anderson, 9 Minn. 39, was for damages for breach of a year’s contract for work and labor, with allegation that plaintiff had been discharged without cause. As to the measure of damages in such ease, the syllabus of the case reads:

“In an action upon a contract for services for a specified time at a specified compensation, where, before the end of the time, the employer discharged the employe, and the latter sues for the entire compensation, the defendant may show in diminution of damages, that after plaintiff was dismissed and during the specified time, he engaged in other business. ’ ’

The ease of Horn v. Western Land Assn., 22 Minn. 233, involved the breach of a contract identical in character with that of Shaver in this case. Horn; had accepted an appointment from the Western Land Association, a Philadelphia corporation, to represent it as its attorney and to attend to its legal business in St. Paul, Minn., for $1,000 per year, payable quarterly. He entered upon his employment, rendered valuable services, but was notified before the year was out that his appointment had been made by mistake and without authority and that another had been appointed attorney for the company. Having sued the company he recovered the full $1,000 with interest on the quarterly payments from the time they became due. The Supreme Court affirmed the judgment and the third and fourth paragraphs of the syllabus of the case read:

"In such case a contract is terminated by a breach on the part of the employer, and the employe, continuing ready and able to perform on his part, is presumptively entitled to recover as damages, on account of such breach, the stipulated yearly salary and interest.
"If after such breach, plaintiff obtains other employment and compensation, inconsistent with his engagement under the contract, that is affirmative matter in recoupment which it is incumbent on the defendant to set up and establish. ’ ’

It will be noticed that both Minnesota actions were brought after the contract period had elapsed, but the latter ease furnishing the rule as to the attorney’s contract for services, its exceptional characteristic is readily incorporated in the rule as stated in the Massachusetts case cited, so that it be made to read:

"As well as the likelihood that the plaintiff would be able earn money at other work, inconsistent with his employment under the contract.”

It may be said that such likelihood is. absolutely impossible of proof. This case, however, is to go back for re-trial and we don’t know what effort may be made at the next trial to prove what is now claimed to be impossible of proof. As there may be a new trial, it is the duty of this court finding error in the charge as to the measure of damages at the first trial, to eliminate what it considers the true rule to be given in the case. . '

Whether or not we are right in applying the rule laid down in the Minnesota ease to an action brought before the contract term had expired, it is at least useful to call attention to that case, for before this ease can be tried again in. the court below, the full time for which the plaintiff contracted will have expired

As to the presumptions and burdens of proof where defendant attempts to show diminution of damages by reason of other employment, see Cortegan v. Mohawk & Hudson River Ry., 2 Denio 609.

Counsel for defendant in error have brought to our attention the text-books on damages and what they have to say regarding the measure of damages where an attorney is dismissed from his employment. General language used in these boobs seems to warrant the claims of said counsel that in a ease like this, the measure of damages would be the full contract compensation, but we have examined all authorities cited by the authors and find that none of them sustain the text to the extent of making it applicable to a case of employment for general legal services for a term of years.

The cases cited do sustain the rule claimed, as to employment for the prosecution or defense of specific litigation.

We are inclined to think the rule here adopted is more applicable to the special features of the contract for breach of which suit was brought by the plaintiff below.

At any rate, as the charge neglected to bring to the attention of the jury the probabilities as to Shaver’s serving the term of employment, a matter mathematically demonstrable, the judgment is reversed.

We have examined other errors complained of, but for the one error alone, to-wit, in the charge as to measure of damages, the judgment is reversed.

Henry and Marvin, JJ., concur.


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    ATTACHMENT AND GARNISHMENT — BILL OF EXCEPTIONS.
    [Cuyahoga (8th) Circuit Court,
    January 12, 1906.]
    Henry, Marvin and Winch, Jj.
    Christopher Schloupt v. Joseph T. Thompson.
    1. Attachment for Work and Labor Sustained though Trial Judge Sustained Judgment on other Grounds.
    In an attachment case when the affidavit alleges, and there is evidence tending to show that the claim is for work and labor, on error the judgment sustaining the attachment will be affirmed, though the trial judge sustained the attachment upon other grounds.
    2. Bill of Exceptions Certifying All Evidence Except Exceptions Allowed, not Considered.
    When the trial judge certifies that the bill of exceptions contains all the evidence, “except the testimony set out in plaintiff’s exceptions, which exceptions have been allowed,” and said exceptions are not allowed to the bill of exceptions, or in any manner made a part of it, the bill of exceptions can not be considered.'
    Error.
   WINCH, J.

The petition in error in this case calls for a review of the action of the common pleas court in sustaining an attachment, which the transcript says was “sustained on the second ground of the affidavit.”

As the affidavit does not separately state and number the grounds on which the attachment was claimed, we are somewhat in doubt as to which is the second ground, but counsel for both parties in their briefs seem to agree that said second ground was that the defendant (plaintiff in error) “has assigned, removed and disposed of, or is about to assign, remove or dispose of his property, or a part thereof, with intent to defraud his creditors. ’ ’

There is however another ground alleged to which counsel have not called our attention, and that is that the claim was for manual work and labor. Why our attention was not called to that allegation as a ground for attachment we can not conceive. If the motion to dissolve the attachment was properly overruled for any reason, it is the duty of this court to affirm the judgment, no matter what reason the trial judge gave for his judgment.

The statute, Sec. 6849 R. S. (Sec. 12476 G. C.), in plain language provides that in an action for work and labor before a justice of the peace — and this attachment was sued out before a justice of the peace, and carried on appeal to the common pleas court — the plaintiff may have an order of attachment when the affidavit therefor sets forth merely the nature of the plaintiff’s claim, that it is just, the amount affiant believes the plaintiff ought to recover, and that the property sought to be attached is not exempt from execution, without mentioning any of the nine particulars the existence of one or more of which must be stated when the action is not for work and labor.

The concluding words of the first paragraph of the statute are: 1 ‘ and except when the claim is for work and labor, or for necessaries, also the existence of some one or more of the following particulars.”

We construed this law with regard to necessaries in the case of K. B. Co. v. Batie, 25 O. C. C. 482 (2 N. S. 358), and what was there said with regard to actions for necessaries is equally applicable to actions for work and labor.

Hence, in the case at bar, it appearing from the affidavit that the claim was for work and labor, it was unnecessary to allege, and so unnecessary for the court to consider, any evidence as to whether the defendant was about to dispose of his property with intent to hinder, delay or defraud his creditors, provided the claim was in fact for work and labor.

On this subject it appears that Thompson was sworn and testifies in his own behalf as follows:

‘ ‘ I am a painter by trade and I painted the house of Charles Braeker, 121 Ethel street, Lakewood, for Chris. Schloupt, who is a carpenter contractor, and Schloupt owed me $55, the balance due. I told Schloupt that Mr. Braeker, the owner of the house said there was $55 for me at the office of Peskind & Perris, and that there had been a settlement with Schloupt. I asked him in the presence of Taylor and Hart, who went with me to Van Ness avenue, why he didn’t pay me the $55; as he had settled with Bracker, and Schlonpt aswered 'You owe me $90 and I didn’t settle with Bracker and I will fix it so you won’t get the $55, and if you don’t get out I’ll knock your head off.’ I didn’t want to make any trouble so I went away. ’ ’

Whereupon the court sustained the said motion of the defendant in part, to-wit, that the ground alleged in the said affidavit of plaintiff for attachment that the claim was for work or labor did not exist; and ordered the evidence confined to the other grounds alleged in said affidavit. ■

Why the court made this ruling, if it did, we can not understand, if the bill of exceptions contains all the evidence offered on this point. Clearly there was showing sufficient to sustain the allegation that the claim was for work and labor, and the introduction of any evidence as to the existence of other grounds for attachment was unnecessary. As this ruling was in favor of plaintiff in error, he can not complain of it. Nor is it necessary to consider the other grounds for sustaining the attachment.

There is another reason why this judgment must be affirmed.

The bill of exceptions is not in shape to be considered by this court.

It appears that the bill was filed in the trial court and thereupon, exceptions were filed to it, under the statute. There is an entry on page three of the bill as follows:

‘ ‘ This was all the evidence offered by the plaintiff to sustain the issue on his part, except the testimony set out in plaintiff’s exceptions, which exceptions have been allowed.”

Said exceptions are not attached to the bill of exceptions or in any way made a part of it. The paper writing containing them is part of the files, but we can not look to the files for evidence, as has frequently been held by this court regarding affidavits not made part of the bill of exceptions.

It thus appearing affirmatively from the bill of exceptions that it does not contain all the evidence, and the questions involved requiring a consideration of all the evidence, the judgment must be affirmed.

Henry and Marvin, JJ., concur.


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    APPEAL.
    [Cuyahoga (8th) Circuit Court,
    January 29, 1906.]
    Henry, Marvin and Winch, JJ.
    National Union v. Stella De Mellett.
    No Appeal from Refusal to Strike Cross-Petition from Files.
    Overruling a motion to strike a cross-petition from the files is not a final order from which an appeal may be taken.

      Burton & Bake, for plaintiff in error.

      Max J. Pfist&r and Alex II. Martin, for defendants in error.
   WINCH, J.

Tbe plaintiff below, Stella De Mellett, brought her action in the common pleas court against the National Union, to recover on a benefit certificate of said association, claiming as widow of Alphonse De Mellett, a deceased member thereof. The association answered denying that she was the widow of said Alphonse De Mellett and alleging that his membership in said association lapsed during his lifetime by reason of non-payment of dues. Upon application of Victorie Spwekhoff, Louise Wite and Margaret Werner, they were made parties defendant to the action and filed their cross-petition claiming to be entitled to the benefits under the same certificate issued to said Alphonse De Mellett, as his heirs at law.

The National Union thereupon filed its motion asking that said cross-petition be stricken from the files, claiming that the court had no authority to permit said heirs to become parties defendant to the action without its consent. This motion was overruled, whereupon, and before trial of the issues between the parties, plaintiff in error filed its petition in error in this court to reverse the ruling of the common pleas court in refusing to strike said cross-petition from the files.

We hold that this action of the common pleas court was not a final order, as defined in See. 6707 R. S. (Sec. 12228 G. C.), which in effect determined the action and prevented a judgment. For aught that appears the plaintiff in error may yet succeed in its defense to the action, which is still pending in the common pleas court. The petition in error was prematurely filed and this court is without jurisdiction to entertain it and so it is dismissed. Holbrook v. Connelly, 6 Ohio St. 199.

Henry and Marvin, JJ., concur.


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    MASTER AND SERVANT.
    [Cuyahoga (8th) Circuit Court,
    January 16, 1906.]
    Henry, Marvin and Winch, JJ.

      Erie Ry. v. Nellie McDonnell, Admr.
    Injury Resulting from Careless Mending of Chain Assumed Risk.
    When the evidence shows conclusively that a servant familiar with the nature of the work upon which he was engaged was present while a broken chain was mended and saw how it was mended, and the chain again broke at the mended place allowing a load to fall upon and kill him, he must be deemed to have assumed the risk and it is the duty of the trial court to direct a verdict for defendant.
    Error.

      Cushing & Clarke, for plaintiff in error.

      Meyer & Mooney, for defendant in error.

       Affirmed, no op., McDonnell v. Erie Ry., 77 Ohio St., 623.

   WINCH, J.

This is a proceeding in error to reverse a judgment recovered in the common pleas court by the defendant in error for the wrongful death of her decedent by the alleged negligence of plaintiff in error.

The petition, in effect, alleges that Patrick McDonnell, on the day when he was killed, was working for the Erie Ry. as a common laborer on a pile driver, driving piles under the direction of a foreman of said company; that in lifting heavy logs into position to be driven as piles, he' was furnished a short chain to be hooked around the logs so that the lifting rope might be attached; that this chain had been broken and mended with wire in a careless and negligent manner; that while one of the piles was being lifted into position by means of a derrick and said imperfect and improperly repaired chain, “the said chain and the said wire so as aforesaid used in the said improper repair thereof, through the said negligence of said foreman and the said defendants, suddenly parted, broke and gave way at the said point of the said improper repair thereof, thereby releasing and causing the said pile to fall upon, crush and kill the said decedent. ’ ’

The answer admits that the Erie company owned the pile driver machine and its appliances; that McDonnell was killed while engaged in driving piles by reason of the parting of said chain, but alleges that decedent knew, or by the exercise of ordinary care could have known, the condition of the chain which parted, but without objection continued to-use it for the purpose for which it was being used at the time the accident occurred. It thus pleads that McDonnell assumed the risk attendant upon the use of the defectively mended chain, and it further alleges that this injury was caused and contributed to by his own negligence and the negligence of his fellow servants.

A reply filed by the plaintiff denies that McDonnell knew, or could have known the defective conditions of the chain and avers that he had no knowledge thereof.

It thus appears that this was an action brought by a servant against his master to recover for defects in the appliances used in the business and under the rule laid down in Wood, Law of Master and Servant, 444, quoted with approval by Judge Minshall in Chicago & O. Coal & Car Co. v. Norman, 49 Ohio St. 598, 607 [32 N. E. 857], it was necessary for the plaintiff to establish three propositions:

1. That the appliance was defective.

This is conceded by the pleadings.

2. That the master had notice thereof, or knowledge or ought to have known.

This was established by the evidence, for it was shown that one Malmsten was a foreman in the employ of the company and in charge of the manner in which the work was being done at the pile driver by McDonnell and others, and that he knew of the defective mending of the chain and either did the mending himself or assisted McDonnell in the mending.

3. That the servant did not know of the defect, and had not equal means of knowing with the master.

This proposition must be examined in the light of the case of Pennsylvania Co. v. McCurdy, 66 Ohio St. 118 [63 N. E. 585], the syllabus of which reads as follows:

“An employ© experienced in the service in which he is engaged is conclusively held to appreciate the dangers which may arise from defects of which he has, or in the exercise of due care, might have-due knowledge.”

The evidence in this case shows that while McDonnell was a day laborer, he had been employed as such in and about pile drivers, using chains such as were used in this case and for the same purpose, for six or seven years off and on. J. A. Smith, his former employer, testified to this and was une.ontradicted. We do not think it would require any special knowlede or skill to enable a laborer to understand the nature and use of an ordinary chain, and its adaptability to the purpose for which it was furnished, but if it does McDonnell was clearly an “employe experienced in the service. ’ ’

There remains, then, for inquiry the sole question: did McDonnell know of the defect, or did he have equal means of knowing with the master ?

The record shows that the chain was broken while the men were at work; McDonnell and all the men knew that it was broken; they all stopped work and had nothing to do for from fifteen minutes to half an hour, until it was mended. The chain was not taken away to a blacksmith for repair, but was mended on the spot with wire picked up on the rock and run twice through the links. The links were of % inch iron; the wire was from 2-16 to 3-16 inches in thickness; two strands were of less strength than the iron; it is conceded that the mending was defective.

The plaintiff’s witnesses testified that McDonnell was present when the repair was made. Coyne (pp. 48 and 49) : “McDonnell was about 10 feet away — he saw the chain being fixed— lie couldn’t help but see it — he was standing there looking at all the operations.”

Brooks (p. 113) : “The whole crew was there. Q. McDonnell was there? A. Yes, sir, the whole crew.”

Cannon (p. 141) “McDonnell was standing near Mileke and Malmsten when they were making the repair, probably five feet or so away. (p. 166) McDonnell was there all the time when they were mending the chain, and we were all looking on. (p. 167) “Q. McDonnell was there all the time, he saw what was being done, he saw the chain was broken, didn’t he? A. Yes, sir, he knew it.

‘ ‘ Q. Could he have helped knowing and seeing it ? A. No, sir. ’ ’

Sprague (245) : “McDonnell was right there when the chain was fixed.”

Two of the defendant’s witnesses testified that McDonnell himself made the repair: Mielke (page 263) and Malmsten (page 285), when they started to work with the mended chain, McDonnell hooked it onto the log, or assisted in so doing.

We think the whole record shows conclusively, as indicated by the passages read and referred to, that McDonnell was aware of how the chain had been mended, and as the defect was patent and pertained to a simple ordinary tool, it obviously, on its face, suggested to him the question: Is this chain, as mended, strong enough? Will it lift this log weighing about a ton? If he made up his mind that it was strong enough, he acted upon his own judgment and assumed the risk of its breaking. If he thought it not strong enough, he should have refused to use it, for he was under no compulsion to go forward.

There is a common saying that a chain is only as strong as its weakest link. McDonnell knew this, and was called upon to examine the mended link before he proceeded. He had equal means with his employer of knowing about the defect. Such being our conclusion, it follows that the plaintiff failed to establish the third proposition above stated, and was not entitled to recover on the facts of the ease. ■

Considerable criticism of the charge as given by the trial judge has been made by counsel for plaintiff in error, but we find the charge not open to the objections made to it, when considered as a whole. On the conceded, controlling facts of the ease, however, the trial judge should have directed a verdict for the defendant.

The judgment is therefore reversed because it is contrary to the law and the evidence, and proceeding to render the judgment which the trial court should have rendered, judgment is entered for the plaintiff in error.

Henry and Marvin, JJ., concur.


text:
    QUIET TITLE.
    [Cuyahoga (8th) Circuit Court,
    February 17, 1906.]
    Henry, Marvin and Winch, JJ.

      Edward A. Stockwell v. Margaret A. Gambell et al.
    1. Possession Sufficient to Quiet Title.
    A grantee who goes upon lands which are part of an open common and locates and measures the lots which he has purchased, intending thereby to take possession of them, although he leaves no physical impress of his presence upon the lots, is nevertheless in possession and may maintain an action to quiet title.
    2. Possession of Husband not Constructive Possession of Wife to Give Her Heirs Title.
    When the husband of a mortgagee was in possession of a larger tract of land including the mortgaged premises, at the time the mortgage was given, and remained in possession after condition broken, and until the death of the mortgagee, the possession of the husband can not be construed as the possession of the wife, so as to give her heirs legal title to the mortgaged premises.
    3. Heirs of Mortgagee Not in Possession Do Not Inherit Any Rights to Property.
    No rights of possession' pass to the heirs of a mortgagee not in possession.
    Error.

      Snider & Stockwell, T. M. Bates and Dissette & Dissette, for plaintiff in error.

      Joseph Moore, White, Johnson, McCaslm & Gannon and J. A. Fenner, for defendants.

       Affirmed, no op., Wilson v. Stockwell, 78 Ohio St. 394.

   WINCH, J.

This case was heard upon, appeal and involves the title to five vacant lots on Love joy street, near the city limits.

The plaintiff alleges that he is the owner and in possession of said lots and asks that his title be quieted as against the claim of certain of the defendants, who are the heirs of Margaret Harrison and William J. Harrison, and of certain other defendants, who are the heirs of Warren Farr.

All the parties claim under one John F. Usher, who received a deed of the premises from Stackpole and Osborne on January 5, 1877, on which day he mortgaged said premises to Margaret Harrison to secure the payment of two notes of said date, each for $583.50, payable in one year and two years respectively.

Plaintiff claims under a deed from said John F. Usher, dated July 26, 1899; the Harrison heirs claim under said mortgage and the Farr heirs claim under an assignment of said mortgage. There has never been any foreclosure of the mortgage, but the claim is that the mortgage took possession of the premises after the condition of the mortgage was broken, in 1878, and that she, her heirs and assigns, have been in possession of the premises ever since.

A determination of the case depends upon the question of possession, as to which the evidence is very meager and unsatisfactory and necessarily so, because, for at least the last ten or twelve years, the land has been part of an open, common.

Of course, if plaintiff is not in possession of the premises, he can not maintain his action. He testified that he went upon the premises, when he got his deed, located and measured the lots and intended thereby to take possession of the premises. He has been upon the premises about thirty times since, but has left no physical impress of his presence upon the lots, nor has he paid taxes thereon, or exercised any other acts of ownership over the lots. There are certain outstanding tax titles on the lots and part stands forfeited to the state of Ohio. We are inclined to think, the lands being vacant and open, apparently unclaimed by anybody else, that Stockwell is intention to take possession by going upon the land after he received bis deed, must be considered as fixing the character of his act, as held in the case of Clark v. Potter, 32 Ohio St. 49, and eases therein cited.

Now what are the claims of the defendants? They depend upon whether possession was ever taken under the mortgage of Margaret Harrison, for no twenty-one years exclusive and adverse possession can be claimed by them under the facts of the case.

Under the rulings in the cases of Kerr v. Lydecker, 51 Ohio St. 240 [37 N. E. 267; 23 L. R. A. 842], and Bradfield v. Hall, 67 Ohio St. 316 [65 N. E. 1008], it appears that while there has been no such thing as strict foreclosure so-called, in Ohio, since the adoption of the civil code in 1853, yet, as between the mortgagor and mortgagee, after condition broken, the legal title to the mortgaged premises is in the mortgage, and ejectment may be brought upon the mortgage to recover possession of the premises. From this it is argued that if the mortgagee takes possession of the premises after his legal title has become absolute by reason of breach of the conditions of the mortgage, he needs no action of ejectment, and the mortgagor or his assigns, may recover the possession only by offering to redeem. This conclusion seems sound.

With this view of the law in mind, what are the facts as to the mortgagee, or those claiming under her, having taken possession of the premises here involved ?

It seems that William J. Harrison, husband of the mortgar gee, in 1873 owned about thirty acres of land, including the five lots in question. He sold the thirty .acres to Staekpole and Osborne and they subdivided the land into lots and laid out Love-joy street, on which these five lots front. The subdivision was recorded and furrows or gutters run, defining the street on the land.

But Harrison appears to have remained in possession of twelve to sixteen acres of the land, which was enclosed by a fence on four sides, and included the five sub-lots. He cultivated the lots, and raised crops thereon. Under what arrangement Harrison retained possession, we do not know, but it must have been under his grantees, Staekpole and Osborne.

Harrison was in possession of these lots in 1877, when Stack-pole and Osborne sold to Usher and appears to have continued in possession in a rather uncertain manner, until about 1894. He was in possession when the mortgage under which defendants claim was executed to his wife; he was there when its conditions were broken and he was there when she died in 1885,

There is no evidence that Margaret Harrison, the mortgagee, ever had possession of these lots, and while her husband may have attended to some business for her, his possession of fifteen acres of land, including these five lots of perhaps an acre in all, can not be construed as her possession.

When Margaret Harrison died in 1885, title to the mortgage notes did not pass to her heirs. The syllabus of the ease of McBridge v. Vance, 78 Ohio St. 258 [76 N. E. 938; 112 Am. St. 723; 4 Ann. Cas. 191], reads:

“1. As a general rule administration is a prerequisite to the devolution of the personal estate of a decedent.
‘ ‘ 2. The personal property of a deceased person does not vest in his heirs, but'is in abeyance until administration is granted, and is then vested in the administrator, by relation from the time of death, and no right of action on a promissory note belonging to a deceased person is shown by a party in an action on the note, by proof of possession and that he is the sole heir of the decedent.”

But it is claimed that Margaret Harrison’s legal title under the mortgage passed to her heirs. Her legal title, however, was incomplete; she lacked possession. True, she had the right of possession, but the most that can be claimed is that her naked title, with this right of possession, passed to her heirs, and that, in trust for the owner of the notes.

The heirs of Margaret Harrison never attempted to exercise any right to take possession of the premises, but shortly after their mother’s death they executed to their father, William J. Harrison, a quit-claim deed conveying to him “all the title, interest and claim to any and all lands, parcels of land and rights in land owned and possessed by said Margaret Harrison at the time of her death, and which by her death and intestacy has devolved upon us the said grantors, all of said lands and interests in lands being in the 14th ward in the city of Cleveland, county of Cuyahoga and state of Ohio. It being the purpose and design of this conveyance to transfer to and vest in said grantee, not only such real estate as said Margaret Harrison held at the time of her decease in fee simple, but also any and all equitable interests held by her at her death and descendable to her heirs, howsoever described, and whatsoever found. For a more particular description of which so far as the same is possible, and can be ascertained of record, reference is hereby made to all records and titles of said Margaret Harrison, in the recorder's office of said county. ’ ’

If any interest or right in the five lots passed by this deed to William J. Harrison, who was then in qualified possession of the premises, perhaps, by reason of his cultivation of the soil, gathering of hay, or pasturing of his cattle thereon, which one witness testifies to, it was the naked legal title without any beneficial interest, of course, .under the law of this state, followed the notes, and they never became the property of William J. Harrison.

One of his sons-in-law who, after the death of William J. Harrison in May, 1899, was appointed and acted as administrator of his estate, testifies that Mr. Harrison continued to cultivate and make some use of the fifteen acres of land, including these lots, for about nine years after his wife’s death, or until 1894, when the fences were thrown down, or fell down, and the lots became part of a common over which everybody traveled at will and on which many different persons pastured their cows.

In 1899, four years later and just previous to his death, it is likely- that William J. Harrison delivered the mortage notes to Warren Farr, whose executor was permitted to testify that she found said notes among the effects of said Warren Farr, after his death, as also a paper writing reading -as follows:

“Cleveland, 0., April 24, 1899.
“Received from Warren Farr ten dollars. Down payment of $100 to be paid-by said Warren Farr to W. J. Harrison for a quit-claim deed on -sub-lots Nos. (five in all) and all papers belonging to said sub-lots to be turned over to said Warren Farr.
“$10.00 W. J. Harrison.”

The notes were unendorsed and there is nothing to connect the receipt with either the notes or the lots in question, and it is in evidence that Harrison and Farr had dealings about other lots.

Some effort was made to.show that Warren Farr attempted to take possession of these lots in 1899, by removing some top soil, therefrom and driving over the lots, but it must be conceded that his possession of the notes gave him no title to them, for that was in abeyance, awaiting administration upon the estate of Margaret Harrison, and the receipt is no conveyance of' any legal title to the land.

As first stated, in July, 1899, plaintiff went upon the land with the intention of taking possession thereof under, his deed from Usher. He found the lots vacant, unenclosed and used as a common. Under the facts as testified to at the hearing, we think we had a right to-believe, as we find, that there was no “mortgagee in possession,” to dispute his title or possession.

We have no trouble in arriving at the conclusion, from the evidence, which an attempt has been made to recite fairly, that neither Margaret Harison, nor any one lawfully claiming under her mortgage, ever had or took possession of the premises in dispute, and if William J. Harrison ever attempted or intended so to do under color of title to the mortgage, he abandoned his possession at least five years before the plaintiff took possession.

It follows that plaintiff has established his legal title to and possession of the premises, and having brought this, suit in April, 1901, more than twenty-one years after the maturity of the notes secured by the Margaret Harrison mortgage, all rights thereunder claimed by defendants are barred by the statute of limitations.

As to the tax deeds pleaded by the Farrs, they being ineffectual to pass title, account must be taken of the amount due for taxes paid, as provided by the statute, and a lien therefor provided in the decree drawn in accordance with the holding herein announced, quieting plaintiff’s title as prayed for by him.

Judgment for plaintiff.

Henry and Marvin, JJ., concur.


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    EXECUTORS AND ADMINISTRATORS — GIFTS.
    [Cuyahoga (8th) Circuit Court,
    February 26, 1906.]
    Henry, Marvin and Winch, JJ.
    John Delfs Ex. v. Pauline Yeager et al.
    1. Evidence of Delivery Insufficient to Establish Gift Causa Mortis Sufficient to Constitute Gift Inter Vivos.
    Evidence that donor handed donee a bank-book, telling her that it and the money it represented were hers, and that thereafter the donor took back the bank-book to make arrangements at the bank to secure the payment of the mone3 to the donee, after which it was never redelivered to the donee, while not establishing a gift causa mortis may be sufficient to establish a gift inter vivos.
    2. Evidence of Services Performed by Donee Competent to Show Motive for Gift.
    Evidence of services performed by the donee for the donor of an alleged gift is competent as showing the relationship between the parties, a motive for the gift and an intention to make one.
    Error.

      W. C. Rogers, for plaintiff in error.

      J. A. Fogle, J. O. Eeald and Squire, Sanders & Dempsey, for defendants in error.
   WINCH, J.

The contention, in this case is about money deposited on a savings account and represented by a bank book issued by the defendant, the Lorain Street Savings Bank Company. Peter J. Weiss in his lifetime was the owner of this money or bank account, and Pauline Yeager claims that Mr. Weiss gave her the bank book and the money represented thereby on Sunday, July 23, 1904, two days before he died. The plaintiff in error claims that no such gift was ever made and claims the fund for administration as part of the estate of the deceased.

Litigation over the matter begun by Mrs. Yeager suing the bank for the money. The bank, by interpleading, brought the money into court and brought in the executor as a rival claimant for the fund. The issues being made up between the claimants of the fund, the case went to trial to a jury, the executor excepting to a jury trial, however, which raises one of the questions to be reviewed here. The plaintiff claimed the fund as a donatio mortis causa, and it was submitted to the jury on that theory by a charge which omitted all reference to the law on the subject of gifts inter vivos. '

The jury found specially that a gift had been made and that it was a gift causa mortis. Judgment was accordingly entered in favor of Mrs. Yeager, whereupon the executor perfected proceedings in error to this court. We think there was no error in submitting to a jury the issues of fact between the claimants of the fund. McGinnis v. Schwab, 24 Ohio St. 336.

From the bill of exceptions it appears that Peter J. Weiss was about eighty years old at the time of his death, on Tuesday, July 25, 1904. He was possessed of considerable money which he had saved by his frugality during a long life. This money was on deposit in various savings banks in the city of Cleveland.

The old man had no family and had lived alone for many years. There were two grand-daughters of his deceased wife, and these step-grandchildren, if they may be so called, were remembered in the old man’s will.

Mr. Weiss had an accident several years before his death, as a result of which he suffered pains in his back. The plaintiff, a woman in humble circumstances, had nursed the old man, washed for him, rubbed his back, made nourishing soup for him and eared for him with many kindly offiices and for a long time. He occasionally visited her at her home and took meals there. She says he had paid her for all her services and it seems he owed her therefor nothing but gratitude. Exceptions were taken to testimony along these lines, but we think it entirely competent as showing the relation between the donor and donee, a motive for the gift and an intention to make one.

On the Sunday preceding his death, Mr. Weiss went to the home of Mrs. Yeager, arriving there about dinner time. When he appeared Mrs. Yeager said, “Why, how badly you look,” and he answered: “I feel as bad as I look.” Something was said by him indicating that he did not expect to live long.

Then Mr. Weiss gave Mrs. Yeager the bank book in question, telling her it and the money in the bank represented by it were hers. The words of gift as testified to by several witnesses, were absolute and without conditions, or reference to death. Mrs. Yeager took the bank book and put it in her bosom. Then Mr. Weiss requested her to give him the book again that he might go to the bank with it the next day and have it fixed so that she would have no trouble about drawing the money, telling her that if he could not attend to the matter, she would find the book at his house behind Washington’s picture, or in the Bible.

Thereupon the book was handed back to the old man and afterwards he spoke of the book and money as belonging to Mrs. Yeager. The old man never went to the bank with the book and died on the following Tuesday evening. At his bedside were Mrs. Yeager and several persons. It is claimed that Mrs. Yeager repossessed herself of the bank book by direction of Mr. Weiss that evening, before he died. The record, however, shows this point was disputed by several witnesses and there is no competent evidence that such was the fact. It seems clear that the book was in the Bible when the old man died and Mrs. Yeager took possession of it later.

Counsel for defendant undertook to examine the plaintiff as to what she had at one time told him regarding what had occurred at the death bed; upon examination by her own counsel as to the whole conversation, she was permitted to say, over objection, that she had informed him that Mr. Weiss before he died told her to take the book and that she did so at once. We think there was no error in permitting the witness to give this entire conversation, but it can not be considered as evidence of what in fact did occur, and so the trial judge ruled and instructed the jury.

The serious and troublesome part of this case is the charge of the court. It was framed upon the theory advanced by the plaintiff that the question to be decided by the jury was whether or not there had been a donatio mortis causa. No directions were given as to the requisites of a gift inter vivos, and yet we think the judgment is sustainable upon that ground alone.

From the evidence as to what occurred at Mrs. Yeager’s house on Sunday, the jury might have properly found a gift inter vivos. That Mr. Weiss was then siek and died two days later, would not necessarily reduce a gift then completely executed, to one causa mortis.

‘ ‘ The fact that the donor is near death is not of controlling importance in determining whether the gift is causa mortis, or inter vivos. * * * The test whether the gift is one inter vivos or one causa mortis is not the mere fact that the donor is in extremis, and expects to die, and does die of that illness, but whether he intended the gift to take effect in praesenti, irrevocably and unconditionally.”

See note 13 to the case of Johnson v. Colley, 101 Va. 414 [44 S. E. 721; 99 Am. St. 844, 917] and cases cited.

It becomes important in this case to determine to which class the gift claimed belongs, because of the fact that the bank book was returned to the donor that he might take it to the bank “so that the donee would have no trouble in drawing the money.” The court charged that the donor might have possession of the book as agent for the donee and such possession would be the constructive possession of the donee. This rule is correct as applied to gifts inter vivos. See the case of Martin v. Funk, 75 N. Y., 134 [31 Am. Rep. 446], quoted with approval by Judge Follett in the ease of Gano v. Fisk, 43 Ohio St. 462, 472 [3 N. E. 532; 54 Am. Rep. 819],

But as to gifts causa mortis, the rule appears to be otherwise. At least there are strong reasons, growing out of the vital distinction between the two classes of gifts, which have brought us to such conclusion.

A gift causa mortis is revocable, but a gift inter vivos is not. For this reason it has been held with regard to the revocable class of gifts:

“Not only must there be a delivery, but the possession of the donee must be a continued one, and the donor have parted with all control and dominion over the subject matter of the gift in favor of the donee, so as to put it out of his power to repossess himself thereof, and no further act be required on his part to vest the title in the donee.” Johnson v. Colley, supra, Thornton, Gifts, 211.

Gifts'of this class are not favored in law, because of the ease with which fraud may be practiced. To be valid they must be made in the last sickness and unrevoked. Possession by the donor at his death is very strong evidence of revocation and after his death the temptation to fraud and perjury is so great that the bars against it should not be let down. These considerations do not usually intervene in the case of gifts inter vivos, where the donor can testify in his own behalf.

We are well aware that to conclude as we have in this case, that there might have been a valid gift inter vivos two days before the donor’s death, not good as a gift causa mortis, because the bank book was in the donor’s possession at his death, weakens the force and conviction of the reasons stated, but we have intimated our views regarding the two classes of gifts, because the case must be again submitted to a jury.

It is doubtful if any jury will go astray if required to find, under proper instructions, whether a gift of either class was made by Mr. Weiss.

For error in the charge the judgment is reversed and the cause remanded for a new trial.

Henry and Marvin, JJ., concur.


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    APPEALS — COURT.
    [Cuyahoga (8th) Circuit Court,
    June 4, 1906.]
    Henry, Marvin and Winch, JJ.
    F. T. Edgar et al v. Robert Lenz et al.
    1. No Appeals from Justice of the Peace to Insolvency Court.
    The insolvency court of Cuyahoga county has ho jurisdiction to entertain appeals direct from justice courts.
    2. Jurisdiction of Subject-Matter not Conferred by Consent of Parties.
    Jurisdiction of a subject-matter can not be conferred on a court by consent of parties.
    Error.

      Frank L. Kuhn, for plaintiff in error.

      Hessenmueller & Schmidt, for defendant in error.
   WINCH, J.

This ease involves the validity of a judgment recovered by plaintiffs in the insolvency court of Cuyahoga county in a ease originally brought by plaintiffs before a justice of the peace and then appealed by them directly to the said court of insolvency, where judgment was rendered in their favor.

This court has heretofore held that the insolvency court of Cuyahoga county has no jurisdiction to entertain appeals direct from justice courts, affirming the judgment of Judge Bushnell of the insolvency court, in the case of Serhaut v. Englebury, 50 Bull., 68 (2 O. L. R. 512), and we see no reason for now reversing that, ruling.

But it is said that the parties to the case entered their appearance in the court of insolvency and consented to its jurisdiction.

Jurisdiction of a subject-matter can not be conferred by consent. The right to hear a ease on appeal from an inferior court is conferred by statute, touches the subject-matter, and can not be created by consent. This has been held so frequently that it is idle to cite authorities.

The common pleas court having arrived at the same conclusion, and having held said judgment of the insolvency court to be void, its judgment is affirmed.

Henry and Marvin, JJ., concur.


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    SALES — TENDER.
    [Cuyahoga (8th) Circuit Court,
    June 4, 1906.]
    Henry, Marvin and Winch, JJ.

      Winton Motor Carriage Co. v. Clarence M. Busch.
    Unreasonable Delay in Tender Back of Goods on Rescission for Breach of Warranty.
    When vendee claims a breach of warranty and rescission of a contract of sale with a tender back of the goods, evidence consisting of correspondence between the parties at a time six months before the goods were tendered back, in which vendor denies the existence of a warranty, shows an unreasonable delay in making the tender back and defeats vendee’s right to recover the purchase price.
    Error.

      Sterling Parks and W. H. McMorris, for plaintiff; in error.

      Carr, Stearns & Chamberlain, for defendant in err.or.

       Affirmed, no op., Busch v. Winton Motor Carriage Co., 77 Ohio St., 619.

   WINCH, J.

Clarence M. Bush brought his action against the Winton Motor Carriage Co. in the common pleas of Cuyahoga county and filed his petition as follows :

For a cause of action the plaintiff says that on or about June, 1903, he purchased from the defendant a Winton motor carriage of the model 1903, for an agreed price of twenty-five hundred and thirty-four dollars and forty cents ($2,534.40).

Plaintiff says that at the time of said purchase he stated to defendant that he would buy the said motor carriage only upon the condition that the said motor carriage was capable of making and maintaining a speed of forty-five miles an hour, and that the defendant represented and expressly warranted that said motor carriage could and would make good and maintain a speed of forty-five miles an hour.

Plaintiff says that relying upon said representations he bought said motor carriage on or about June 4, 1903, and on said June 4, 1903, paid to the defendant $2,500 upon said purchase price, and on July 30,1903, paid the said $34.45 to defendant, the said $2,534.45 being the purchase price in full of said motor carriage.

Plaintiff says that the said motor carriage did not and could not make and maintain a speed of forty-five miles an hour and did not and could not make and maintain a speed of thirty miles an hour, and that he immediately notified defendant that the said motor carriage was not able to maintain said required speed of forty-five miles an hour and at the request of the said defendant returned said motor carriage to the defendant for repairs and for the purpose of changing the said motor carriage so as to make it conform to said warranty, and that between July 9, 1903, and about November 1, 1903, the said defendant had said motor carriage in their possession from time to time and endeavored to fix and change the same to make it conform to said warranty, but were unable tó do so.

Plaintiff says that on January 23, 1904, he notified the defendant that the said motor carriage was held by him subject to the order of the defendant and offered to return the same upon the repayment of the said sum of $2,534.45, with interest as aforesaid from June 4, 1903.

It will be noticed that the plaintiff bases his cause of action upon a sale and delivery of the machine on June 6, 1903, on which day he paid $2,500 of the purchase price and on July 30, 1903, the balance of $34.45, and a rescission of the contract and tender back of the machine on January 23, 1904, some seven months and seventeen days later. He stands squarely upon an alleged rescission of the contract.

An amended answer filed by the defendant denies the alleged warranty that the machine would run forty-five miles an hour and all allegations except the sale and delivery of the machine for the price stated and the payment thereof.

The case was tried to a jury, which found for the plaintiff in the full sum claimed by him, the trial court submitting to it three questions:

1. Whether the sale was made upon the conditions that the stipulated speed could be maintained.

2. Whether the ear could make the stipulated speed.

3. Whether, under all the circumstances, the plaintiff tendered back the car within a reasonable time.

The court instructed the jury that it must find for the plaintiff on each proposition, in order that the plaintiff might recover.

The plaintiff’s evidence consisted largely of letters written by him to the company and its agents and received by him from them.

They exhibit many troubles that the purchaser had with his machine and complaints with regard thereto; and he complains that the machine did not go fast enough to suit him. But it would seem that the jury did not give the proper weight to three letters which passed between the parties on July 17, 18 and 20, 1903. I will read them:

“July 17, 1903.
“Mr. C. M. Busch,
Atlantic City, N. J.
“Dear Sir: Your letters of the 14th and 16th received, also your postal card of yesterday. There is a little side play in the crank shaft of all the touring cars, to be sure it is not much, but it is there and you need have no worry on that account. I am unable to send you the freight bill from the Pennsylvania Railroad as it has been mislaid, but I am trying to get the duplicate of it. I do not know what you can do as the rate is for 6000 pounds and not 4000 pounds. I am sending you another spring to be put in the breaker box plunger behind the spark point. I have word from the company that it is more than likely you need a little stiffer spring than the one you were using. This one may not be any better but you can try it and if not we will try and get you a stiffer spring. I am afraid that you are prejudiced in favor of the foreign cars which in comparison are far more expensive than the Winton car, and much more expensive to keep up. The 1903 Winton car was never intended for racing and I told you this before you bought it. I trust this new spring will help matters for you; if not, please let me know.
“Very truly yours,
“A. R. Maltby, Mgr., per French.
“Many thanks for spring which has not yet arrived. I am in hopes it will solve the difficulty. If this car would hold the speed it attains momentarily, it would answer my purpose entirely. I don’t want a racer at all. Races between cars of 36 miles speed cam hardly be termed ‘racing’ in the accepted sense of the word. I only want it to do all it is capable of, well. Again thanking you for your kind attention I am, Truly, C. M. Busch.
“July 20, 1903.
“Mr. C. M. Busch,
Atlantic City, N. J.
“Dear Sir: Your letter of the 18th received, and I beg to enclose a freight bill which we paid the Pennsylvania Railroad Company, and I also have another duplicate bill which only goes to show that the rate I name is correct. I asked the company for a duplicate bill. * * * When I sold you this car I told you it would not do much more than 30 miles an hour the way it was geared, and that it was a touring car pure and simple; however, I did say with a smaller sprocket on the rear it would be capable of doing much faster work. We have had cars to do as high as 45 miles an hour. ” * * *

It thus appears that if the agent of the company ever warranted the machine to run forty-five miles an hour, by these letters the purchaser was fully advised that the machine he bought could not make that speed and that the company would not make such warranty good.

Notwithstanding this notice to him, the purchaser ten days later paid the balance of the purchase price and kept the machine sis months longer without offering to return it.

By these letters he was called upon to elect whether he would rescind the contract and return the machine within a reasonable time, or keep the machine and sue for such damages as he might be able to prove.

We think the sis months was too long for him to delay and that the proof clearly shows that the offer to return the machine was not made within a reasonable time. It follows that the verdict is against the weight of the evidence and that the motion for a new trial should have been granted.

Judgment reversed.

Henry and Marvin, JJ., concur.