author: Chittenden, J.

text:
    EXEMPTION FROM TAXATION AS A CONDITION OF PURCHASE.
    Court of Appeals for Lucas County.
    Carrie E. Vrooman et al v. City of Toledo et al.
    Decided, December 14, 1914.

      Municipal Corporations — Land Purchased for a Bouelvard — Sale Conditioned on Exemption from Assessments for Improvement and Maintenance — Condition as to Maintenance-Void as Against Public Policy.

    1. Where a city, having' statutory authority to acquire land for street purposes and assess the cost upon the general tax list, purchases land to be used as a boulevard, and as a consideration for such land agrees that such land shall be improved for boulevard purposes within ten years, and that no special tax or assessment for the improvement thereof or the maintenance of said boulevard will ever be levied or assessed against the property abutting' said boulevard, except such as is levied in the general levy for park purposes, and where the deed for such property is executed by the grantor and delivered to the city and the city takes possession of such land and improves the same in accordance with the terms of the deed, it will be enjoined from assessing the cost of such improvements against the abutting lands of the grantor.
    2. That part of such agreement providing that the abutting lands of the grantor shall never be assessed for the maintenance of such boulevard is against public policy and is void.

      Kohn, Northup, Bitter & McMahon, for' plaintiffs.

      W. S. Thurstin, Jr., City Solicitor, and Thomas L. Gifford, contra.
   Chittenden, J.

Appeal from the court of common pleas.

This cause has been submitted upon a demurrer to the petition. The petition sets forth, in substance, that in the fall of 1899 certain of the plaintiffs, for a valuable consideration, sold and transferred 'by proper deed of conveyance, to the defendant, the city of Toledo, certain property therein described. The petition reads in part as follows:

“One of the considerations and conditions of said sale of the premises last above described to the city of Toledo, as evidenced by and contained in said last mentioned deed of conveyance was and is that the sáid premises last above described, together with other lands procured by said city for the same purposes, would be opened by said city from Walbridge Park to Ottawa Park in said city and improved by turnpiking on or before July 1, 1900, and that said boulevard between said points would all be permanently improved and completed by opening it to its- full length and 'grading- it' to 'its' permanent grade, constructing roadways, improving the same with gravel or other- suitable material to make improved roadways thereof, within ten years from the date of said last described conveyances, and would in like, maimer be perpetually maintained as a boulevard and that, no special tax or assessment for the improvement thereof or the maintenance of said, boulevard would ever be levied or assessed, against the property abutting said boulevard except such as is levied in the general levy for park purposes. Ever since said 7th day of November, 1899, the said defendant, the city .of Toledo, has been the owner and in possession, of the premises last above described.” . • .

- Thereafter in the .petition it is alleged-that the city.took possession of the property and improved the same as a boulevard, in accordance with the condition of the deeds as set forth in the petition. That as a part of the improvement the city constructed sidewalks along the side of the boulevard and in front of the premises of the several plaintiffs, and thereafter passed an ordinance levying a special assessment against the abutting property to pay the cost and expense of the construction of the sidewalks, the amount assessed against each piece being specifically set forth in the petition. It is alleged that the ordinance was duly approved and that the assessment was thereafter certified to the auditor of the county, who placed the assessments ¿gainst the several parcels of land of the plaintiffs upon the tax duplicate of Lucas county, to be collected with the general taxes. An injunction is asked restraining'the collection of the assessments so levied-'by the city,- - -

Tbe only question sought to be raised by the demurrer, and the only question argued, is the validity of the condition set forth in the deeds as one of the considerations for the sale of the property. It is claimed that the condition which provides that no special tax or assessment for the improvement of the boulevard or the maintenance of the same would ever be levied or assessed against the property abutting upon the boulevard, except such as are levied for general park purposes, is void because it is an attempt to exempt property from taxation.

The claims of the several parties have been presented to the court in orál argument and by briefs. We have examined the cases cited by counsel and many others, but do not believe it would be profitable to enter upon an extended examination and analysis of these eases in this opinion.

At the time the deeds were executed the city was empowered, by virtue of Section 1692, Eevised Statutes, paragraph 18, to lay off, establish, open, widen, narrow, straighten, extend, keep in order and repair streets, etc. By paragraph 34 of the same section the city was empowered to acquire, by purchase or otherwise, and to hold real estate.

. Section 2263, Eevised Statutes, provided that when the corporation appropriated or otherwise acquired lots or lands for the purpose of laying off, opening, extending,' straightening or widening a street, the council might assess the cost and expense of such appropriation or acquisition and of the improvement, upon the general 'tax list, in which case, the same should be assessed lipón all the taxable real and personal property in the corporation.

Section 2264, Eevised Statutes, provided that in the city of Toledo the municipality might, if it so desired, assess the cost and expense of such improvement upon either" the general tax list or upon the benefited property, and provided for the time when such assessments might be made due and payable, etc.

It is to be observed that the petition alleges that this contract has been fully performed, the grantors having executed and delivered the deed for the property, and the city having accepted such deed and taken possession of the property and improved the same in accordance with the conditions and provisions of the deed. Therefore, all those eases in which the parties sought by mandamus to compel the specific performance of similar agreements are of little, if any, assistance in determining the question here-presented.

The statutes above cited conferred upon the city full power to acquire the land in question, either by process of condemnation or by purchase. Had it been acquired by condemnation, under the decisions of this state the cost and expense could not be assessed upon the abutting land. C., L. & N. Ry. Co. v. Cincinnati et al, 62 O. S., 465; 4 Longsdorf’s Notes, 839.

In Ohio, therefore, when property is acquired by a city for the purpose of opening and laying out a street, unless the method provided for by the special act, Section 2264, is followed, the cost thereof must be paid by the city and assessed upon the general tax list. There is no claim that the city undertook to act under Section 2264 in the purchases set forth in the petition in this case.

The decided cases sustain the statement of the law set forth in 2 Elliott on Boads and Streets, Section 678, as follows:

“In the absence of legislative authority a city, under ordinary circumstances'at least, has no power to make contracts for the exemption or commutation of local assessments.”

. The law is stated to .the same effect in 1 Page and Jones Taxation by Assessment, Section 616, and in 28 Cye., 1133.

After a careful consideration of the facts alleged in the petition, we do not construe the contract as therein set forth as one granting exemption from taxation. There was no attempt by the wording of the deed to exempt the property from general taxation. The deed provided, first, that the abutting property should not be subject to any special tax or assessment for the improvement of the boulevard, and, second, that it should not be required to pay any special tax or assessment for the maintenance of the boulevard. The provision that the abutting property should not be called'upon to pay any assessment for the 'cón'struction and improvement of the boulevard is, in effect, an agreément that the value of the land so conveyed by the grantors to the city was equal in value to the cost of making the improvement contemplated. The city needed the land for the purpose of constructing a boulevard connecting its several park properties. This land was valuable and its value was recognized by the city. The construction of the boulevard would no doubt be of some value to the abutting property of the .grantors. That the construction and improvement of the boulevard would entail a given expense upon the city was known. The grantors and the city were competent to contract and it was undoubtedly concluded that the values were equal, and that the one should be offset by the other. There is no claim that the one value was not as great as the other, and there is nothing in the pleading to indicate that either the city or the grantor was imposed upon. This view of the case is in accordance with the opinion of the United States Circuit Court of Appeals in the ease of Bartholomew v. The City of Austin, 29 C. C. A. Rep:, 568, 577, and the case of Grant v. City of Davenport, 36 Iowa, 405, 406, cited by the circuit court of appears in the above case.

The-ease at bar we think corresponds in principle with'the case of Coit v. The City of Grand Rapids, 115 Mich., 493, in which ease, concerning a similar contract, Judge Grant, rendering the opinion, said:

“The contract was one of sale and purchase. The deed was not intended as a gift.”

See also, City of Omaha v. Megeath, 46 Neb., 502; Browne v. Palmer, 66 Neb., 287.

There is no positive statutory provision requiring a city to pay for the property so acquired, in money. The city having purchased the land and paid the consideration agreed upon by making the improvements as provided in the deed, and having retained and used tbe land for boulevard purposes, it would seem to be inequitable to permit the city to thereafter collect from the grantors the cost of making the. improvements that the city had agreed specifically to make as a consideration for the land conveyed by the grantors to the city.

The ease presented by the petition is quite different from the ease of Richards v. Cincinnati, 31 O. S., 506, in which the owners of land dedicated certain streets and sought to attach to the dedication a stipulation that the adjoining property should thereafter 'be exempt from assessments for the improvement of such streets.

That contracts on behalf of a municipality by which it is attempted to exempt property from assessments and taxes indefinitely, are contrary to public policy, we think, is well established upon authority of the decided cases and upon reason. We therefore hold that that part of the condition in the deed which provides that the abutting property shall never be assessed for the maintenance of the boulevard is void. Coit v. City of Grand Rapids, supra.

The court in the case just cited did not decide the effect of an agreement to exempt abutting lands from taxation for the maintenance of the sewer, under the terms of the' deed in that case, but raised the- question as to whether or not the contract would be valid in so far as it undertook to exempt from the maintenance of the sewer.

We do not find that the cases cited by counsel for the city are in conflict with the conclusion' we have reached. They are all, or nearly all, readily distinguishable upon grounds that are not obscure.

. The demurrer will be overruled and the defendant given leave to answer.

Kinkade, J., and Richards, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    CONDITIONAL DEDICATION OF LAND FOR PUBLIC STREETS.
    Court of Appeals for Lucas County.
    Carrie E. Vrooman et al v. City of Toledo et al.

    Decided, June 7, 1915.

      Municipal Corporations — Dedication of Land for a Street a Matter of Good Faith Immaterial Whether it is Treated as a Grant or a Sale— Conditions Upon Which a Dedication is Made Will he Upheld, When.

    1. A dedication of land for streets may impose any conditions not inconsistent with public policy and which do not take the dedicated property from the control of the public authorities.
    2. Dedication rests upon good faith, and in so far as good faith requires the parties to comply with the contract and is not inconsistent with a sound public policy, the conditions contained in a dedication will be sustained.

      Kohn, Nonthup, Bitter & McMahon, for plaintiffs.

      W. S. Thurstin, Jr., City Solicitor, and T. L:.Gifford, Assistant City Solicitor, contra.

      Motion to require the Court of Appeals to certify its record in this case overruled October 5, 1915.

   Chittenden, J.

Appeal from the court of common pleas.

This action was 'begun to enjoin the city from collecting from the plaintiffs the cost of construction of certain sidewalks. The case was recently before this court on a demurrer to the petition, ante. In overruling the demurrer the court expressed its views upon the subject-matter sufficiently at length.

Since the former hearing an answer has been filed and evidence taken and the ease is now submitted upon the evidence. We 0find nothing in the evidence that materially changes the. . situation as presented by the allegations set forth in the petition.

It is claimed that the deeds from the plaintiffs to the defendant, the City of Toledo, introduced in evidence, disclose that the transaction between the plaintiffs and the city was not that of sale and purchase, but was that of a dedication by the plaintiffs of certain land to the city for street purposes. It is not very material whether the transaction be treated as a dedication^ or a sale, and it would avail little to enter into any distinctions, between grant and dedication. In our opinion the evidence does not disclose that the conveyance amounted merely to a dedication. If, however, it be assumed that such is the character of the conveyance, the law is entirely settled that such dedication may impose any conditions not inconsistent with public policy, or which do not take the property dedicated from the control of the public authorities. It appears to the court to be entirely* clear that the plaintiffs did not intend to make a gift to the city of the land in question, but that they were to receive, as a consideration therefor, the construction of a boulevard, with its driveways and walks, as set forth in the deed.

We hold, as stated in the former opinion, that in so far as the deed undertook to exempt the adjoining property from assessments for the future maintenance of the boulevard, the conditions are void as against public policy, but in so far as it provides against assessments for the original construction of the boulevard, it is not invalid.

It has been frequently stated that the doctrine of dedication rests upon good faith, and, in so far as good faith requires the parties to comply with the contract and it is not inconsistent with a settled public .policy, the conditions contained in a dedication will be sustained. These principles have been so frequently set forth in decisions and in the text-books that authorities will not be cited here. This conclusion is not in conflict with the decision of the Supreme Court in Richards et al v. Cincinnati, 31 O. S., 506, in which ease there was a plain dedication of land for streets, in which dedicaion it was sought by a condition to interfere with the legal provisions as to the improvement of the streets, by providing that the lots should be exempt from charges for the improvement of streets unless a majority of the abutting owners should assent thereto in writing.

Nothing more need be added here in view of the announcement of the court in its former opinion. A decree may be drawn in favor of the plaintiffs in accordance with this opinion.

Ktnkade, J., and Eichards, J.,’concur.


author: Houck, J.

text:
    AMOUNT OF PROPOSED ISSUE OF SCHOOL BONDS REDUCED.
    Court of Appeals for Coshocton County.
    W. L. Robinson v. S. B. McDonald et al.
    Decided, February 17, 1916.

      Schools — Discretion of a Board Will Not be Interfered With by the Courts, Unless — But a Bond Issue Must Not -Exceed the Proper Relation to the Tax Valuation of the Property of the District.

    1. The courts will not interfere with a board of education in the tran- , saction of its business, unless it affirmatively appears from clear and convincing proof that the acts complained of amount to a gross and wanton abuse of discretion.
    2. The court finds that statutory provisions will not permit of a bond issue by. the defendant special school district in excess of $18,000 for the erection of a new school building, and the issue of bonds in excess of that amount is enjoined.

      W. S. Merrell, for plaintiff.

      George T>. Klein and Thomas E. Wheeler, contra.
   Houck, J.

This cause is here on appeal from the Common Pleas Court of Coshocton County.

The plaintiff is a resident and tax-payer of the Conesville special school district of Coshocton county, Ohio, and instituted this suit for the benefit of himself and other tax-payers of said school district, in which it is sought to enjoin the defendant, the board of education of the Conesville special school district, from issuing and selling certain bonds amounting to $25,000, which it had been authorized to do by vote of the voters of the district, for the purpose of erecting a new school building in said district. The bonds were to be of the face value of $500 each, and to bear five per cent, interest, and two bonds and the interest thereon were to be paid each year until all had been paid. Plaintiff also sought to enjoin the board of education from razing the old school buildings now in use, and the erection of a new one in place of same.

The case was heard in the court below, and plaintiff was granted all the relief prayed for in his amended petition, and a perpetual injunction was issued against the board of education restraining it from issuing and selling said bonds, razing said old school buildings and erecting a new one. From the judgment of the court below the defendant appealed to this court, and the case was heard here on the original pleadings, certain facts agreed to by the parties, and a transcript of the testimony used in the trial below.

But two questions are presented in this controversy for the1 determination of the court, namely:

1. Did the board of education abuse its discretion in the premises ?

2. Is the board of education authorized by law to issue and sell said bonds, and can a tax levy sufficient to pay same and the interest thereon be legally levied on the taxable property of the district?

For the sake of brevity we will .discuss these two questions together. Courts will not interfere with a board of education in the transaction of its business, or in the performance of its acts which are authorized by law, unless it affirmatively appear by clear and convincing proof that such acts amount to a gross and wanton abuse of discretion. Whatever may be the rule elsewhere, it is clear to us that, in this state, courts are not inclined to and in fact will not restrain the official acts of a board of education unless they savor of fraud or a gross and intentional abuse of discretion, and the acts complained of must be wrongful, collusive and arbitrary.

From an examination of the transcript of the testimony in this ease, we are fully convinced that the board of education acted in good faith. It was authorized by a vote of those entitled to vote in the district to do just what it was seeking to do, and therefore it can not be properly claimed that it acted arbitrarily and without some authority in the premises. At least a majority of the voters of the district sanctioned what it attempted to' do.

But the more serious question in the case at bar, and the one which has caused us much research and examination of statutes, is: Will the tax value of the property in the district in question and the tax levy authorized by law warrant or permit the issuing and sale of bonds to the amount of $25,000? We must answer this in the negative. Without referring to the sections of the General Code of Ohio covering the question at issue here, and by which we must be governed' in its solution, we deem it only necessary to say that we are of the opinion that the tax valuation of the property in said school district is sufficient to permit the issuing and sale of bonds to the amount of $18,000, and that the legal tax levy for school purposes will be sufficient to pay the interest thereon and retire a sufficient amount of the bonds each year, as well as provide an adequate fund to properly maintain the school during said time.

It is certainly apparent from an examination of the testimony submitted, and in fact it is not contradicted, that the present buildings are inadequate and not sufficient for the requirements of the pupils of the district; that the present buildings are old and need much repair, and if done would not sufficiently accommodate the necessities of the district.

In view of all these facts, and in order that proper and adequate school facilities may be had by the youth of this district, we hereby dissolve the perpetual injunction allowed by the common pleas court, save and except as to the issuing and selling of bonds in excess of $18,000, each party to pay his own costs.

Judgment may be entered in accordance with the views herein expressed, authorizing the issuance and sale of bonds in an amount not to exceed $18,000, but enjoining the issuing and sale of any bonds in excess of said sum of $18,000. If a motion for a new trial is filed the same is overruled. Exceptions.

Shields, J., and Powell, J., concur.


author: Jones (Oliver B.), J.

text:
    FAILURE OF AN IMPROVEMENT TO CONFER. BENEFITS.
    Court of Appeals for Hamilton County.
    Wilhelmina Cormany et al v. City of Cincinnati et al; Louise M. Weimer et al v. City of Cincinnati et al, and Anna Young et al v. City of Cincinnati et al.
    Decided, February 7, 1916.

      Assessments — Street Improved Under the Benefit Plan — Right of Abutting Owners to Enjoin Collection of Assessment Where no Benefits Were Conferred.

    Failure on the part of an owner of property to file objections to a proposed assessment for a street improvement under the benefit plan under the provisions of Section 3848, does not bar him from bringing an action under Section 12075 to enjoin the collection of such assessment, where the ground of the injunction is that no benefit whatever has been conferred oy reason of the improvement upon the lands so assessed.

      Edward A. Hafner and Walter C. MuhThauser, attorneys for plaintiffs.

      Chas. A. Groom, City Solicitor, and E. K. Bowman, Assistant City Solicitor, contra.
   Jones (Oliver B.), J.

In these cases plaintiffs seek to enjoin the collection of certain special assessments for the payment of a portion of the cost of the improvement of streets, levied upon their abutting lots and lands in proportion to the benefits resulting from said improvements.

The assessments were levied on the benefit plan, being the method enumerated in clause 2 of Section ’3812, General Code.

In each-of the petitions plaintiffs allege that no special benefits resulted to their respective abutting properties by reason of said improvement, and that said assessments greatly exceed the special benefits, if any, accruing to each of said parcels of land from said improvement, which has conferred no benefits whatsoever upon the lands and lots abutting thereon, and that therefore said assessments are unreasonable and void.

By amended answer the city sets up as a second defense that prior to the making and levying of said assessment the council of said city appointed three disinterested freeholders of said city an estimating board to report to it an estimated assessment of the cost of said improvement on the lots and lands to be charged therewith, of which the lots described in the petition are a part, in the proportion as nearly as may be to the benefit resulting from said improvement to said several lots; that said board filed a report of such assessment, with the clerk of the city; that a notice was published for three consecutive weeks in a newspaper of general circulation in said city; that such report was on file in the office of said clerk for inspection and examination by persons interested therein; that within two weeks subsequent to the last publication of said notice neither of the plaintiffs nor any one on behalf of them or either of them filed objections to said assessment or to said report in writing with the clerk; that subsequent to two weeks after the last publication of said notice, said council appointed three disinterested freeholders of said city to act as1 an equalizing board to equalize said assessment;, that said board heard objections to said assessment and reported an equalized assessment; that the council of said city confirmed by a concurrence of two-thirds the members thereof the report of said equalizing board and levied said assessment subsequent to the report of said equalizing board. And the city prays that the temporary injunction be dissolved and the petition dismissed.

A demurrer is filed by plaintiffs to the second defense of the answer. The question raised by the demurrer is whether the owner of property assessed for a street improvement under the benefit plan, who has failed to file objections to the proposed assessment under the provisions of Section 3848, General Code, is barred from enjoining the collection of such assessment by an action brought under the provisions of Section 12075, General Code, where the ground of such -injunction is that no benefits whatever have been conferred, by reason of said improvement, upon the lands so assessed.

The method of levying' an assessment upon the benefit plan is provided by Sections 3847 to 3851, inclusive, of the General Code. Section 3895 provides for the publication of notice. The council itself determines the amount of the cost of the improvement to be paid by the city (G. C., 3820) and the part to be assessed upon the benefitted lots ,(G. C., 3812).

Section 3847 of the General Code is as follows-:

“When it is determined to assess the whole or part of the cost of an improvement in proportion to the benefit which may result therefrom, as provided for herein, the council may appoint three disinterested freeholders of the corporation to report to it the estimated assessment of such cost on the lots and lands to be charged therewith, in proportion as nearly as may be, to the benefits which may result from the improvement to the several lots or parcels of land so assessed, a copy of which assessment shall be filed in the office of the clerk of the corporation for public inspection.”

The function of the board of freeholders provided by this section is to apportion the part of the costs to be assessed among the several lots and lands, to be charged in proportion to their respective benefits resulting from the improvement. This does not necessarily require them to determine the actual benefit received by any particular lot, but only its relative benefit as compared with the benefits received by other lots to be assessed. The duty of this board is merely to properly distribute ’ the amount to be assessed upon the several lots assessed. It has no power either to increase or to reduce the total amount so to be assessed. If no benefit whatever had been conferred by the improvement, or less than the .amount to be assessed, it would have no power to so declare. It is merely an agency to pro-rate the assessment in proportion to the benefits as it views them, and to make due report.

If written objections are filed under Section 3848, General Code, council appoints an equalizing board. Its duties are set out in Section 3850, General Code, as follows:

‘ ‘ On a day appointed by the council for that purpose,, .the equalization board, after taking an oath before the proper officers, to honestly and impartially discharge their duties, shall hear and determine all objections to the assessment, and shall equalize it, as they think proper, which equalized assessment they shall report to- the council, which may confirm, or set it aside, and cause a new assessment to be made, and appoint a new equalizing board, possessing the same qualifications, which shall proceed in the manner above provided. "When the assessment is confirmed by the council it shall be complete and final, and shall be recorded in the office of the clerk of council.”

It will be seen that this section provides for a hearing and determination of all objections to the assessment and then for an equalization. The amount to be assessed, however, is not to be changed in the aggregate — only the several amounts to be assessed, changed as to the several lots, in the process of equalization. Like the board which reported the original assessment, this equalization board has no power to determine that the lots to be assessed have received no benefit or a benefit less than the amount ta be assessed.

This complete plan having been provided for full hearing and equalization, it must be held that so far as all questions of equalization between the several lots' are concerned the owners of property are concluded, but not as to actual benefits (Chamberlain v. Cleveland, 34 O. S., 551). "While Section 3850, General Code, provides that when confirmed by council the assessment shall be complete and final, the assessment by benefits is complete and final in the same sense that an assessment by tax value or by the foot front is final, when the assessment ordinance has been duly passed.

As we have seen, there is no provision for a determination of absolute benefits to the several lots; nor is there any bar provided asainst any lot owner who fails to file objections, as is done with respect to claims for damages under Section 3823, General Code.

The assessment is still subject to the limitations provided by law. Section 3850, General Code, does not in terms or by implication exempt the assessment from the direct limitations fixed in Section 3819, which among others provides that it shall not exceed the special benefits conferred upon the property assessed.

The right given to a municipal corporation to levy an assessment upon abutting lands to pay the cost of a local public improvement is based upon the principle that such property has been specially benefitted by that improvement beyond the benefits common to the public and that in justice a portion of the cost, as the equivalent, but not in excess, of the special benefits thus conferred, should be borne by the owner of such benefitted property. Walsh v. Barron, 61 O. S., 15.

As stated above, the second defense of the answer makes no direct allegation that these assessments were in no instance in excess of the benefits conferred upon the property assessed, nor even that such a finding had been made by either of the assessing boards, or by the council.

The demurrer must therefore be sustained.

Jones (E. IT.), P. J.. and Gorman. J., concur.


author: Houck, J. Powell, J.,

text:
    PROOF OF TITLE TO A NOTE UPON WHICH SUIT HAS BEEN ENTEREp.
    Court of Appeals for Knox County.
    The Discount & Deposit State Bank v. B. E. Litt et al.
    Decided, June 19, 1916.

      Promissory Notes — Burden of Proof as to Title — Where in the Hands of a Third Party After Maturity — Finding of Jury as to Title Will Not he Disturbed, When — Charge of Court.

    Í. A trial judge is not bound to give to the jury written charges before argument which embody abstract propositions of law, however sound, unless they are applicable to the pleadings and the particular facts developed during the hearing.
    2. Where the defendant, in an action on a note, denies that the plaintiff became the owner in good faith before due, but on the contrary was aware of infirmity in the note and that defenses would be in- . terposed thereto, and testimony is offered in support of these allegations, the burden, of proof is cast upon the plaintiff to establish his title, if he has not already done so, by affirmative proof; and where the jury has found that the plaintiff did not become the owner of the note in good faith for value before maturity and without notice of defect in the title of the person negotiating it, a reviewing court will not reverse the judgment as against the weight of the evidence, unless the court is satisfied upon the whole record that the judgment is manifestly against the evidence.

      Wm. Darroch and Greer, Greer & Gromley, for plantiff in error.

      W. A. Hosack and L. C. Stillwell, contra.
   Houck, J.

Error is here prosecuted to revers'e tbe judgment of the Common Pleas Court of Knox County, Obio.

The parties to this action stand in this court in the same position that they stood in the court below.

.The action below was based on a promissory note executed and delivered by defendants to one Will H. Ade for $1,100, and claimed to have been duly sold, assigned and transferred to the plaintiff for a valuable consideration, before due, and that it is the owner and holder thereof, and entitled to recover said sum of $1,100, with interest. Said note was dated February 13th, 1913.

The defendants filed an answer in which they set forth the following alleged defenses:

1. That said note was not purchased by plaintiff before due, and that plaintiff is not now and never was the legal owner and holder of said note. x

2. That said Will H. Ade, the original payee of said note, is the owner and holder of same, and is indebted to these defendants in the sum of $2,850 in this, to-wit: That on the 3d day of September, 1912, the defendants purchased a certain stallion of said Will H. Ade, paying therefor the sum of $1,500, and that said Ade warranted said stallion to be a sure foal getter, etc., and that they relied on said warranty; that said stallion proved worthless for the purposes for which they purchased him, and they were damaged in the sum of $2,850; that as soon as they learned the defects of said stallion they so informed said Ade, and that he then promised to make said loss good, but has failed to do so.

3. That said plaintiff and said Ade, for the purpose of cheating and defrauding these defendants out of their said claim, or so much of it as is represented by said note in question, falsely represented and claimed that plaintiff had purchased said note before due for a valuable consideration.

The plaintiff filed a reply to the answer, being a general denial.

The cause was submitted to a jury and a verdict returned in favor of the defendants. The plaintiff filed the usual motion for a new trial, and the court overruled said motion, and a judgment was entered on the verdict.

The plaintiff in error seeks a reversal of the judgment below, and in its petition in error sets forth a number of grounds of alleged error, but in oral argument and brief seems to insist upon the following:

1. The court erred in its refusal to give certain special written charges before argument.

2. That the court erred in its general charge to the jury.

3. That the verdict was against the manifest weight of the evidence, and is contrary to law.

As to the special requests in writing presented by the plaintiff before argument and refused by the court, the plaintiff presented twelve requests, the court giving four and refusing eight of them. "We are aware of the fact that a party to a lawsuit has the legal right to have given to the jury, before argument, such written propositions of law as he may request, provided such written propositions of law so requested to be given before argument properly state the law applicable to the case on trial. Mere abstract propositions of law, while sound as such, yet if' they are not applicable to the issues, raised by the pleadings and the particular facts in the ease in which they are sought to be given, the court may refuse to give without error. We have examined with much care the charges which the court refused to give to the jury, and we have no hesitancy in saying that as abstract propositions of law they are sound, but they are not applicable to the facts in this case, and therefore the trial judge committed no error in refusing to submit them to the jury.

Counsel for plaintiff in error complain of the general charge of the court wherein the court says:

“If you find that the defendant B. E. Litt had a valid claim for damages against Ade for the breach of the warranty for this horse Constant, and you further find that Ade knew of this claim of the defendant, and you further find that he sold the note to the plaintiff for the purpose of defeating and defrauding defendant out of his claim, if the jury finds all these facts, then the possession of the note endorsed by Ade raises no presumption as against this proof that plaintiff purchased the note without notice or defect in the hands of Ade. * * * Now if these facts have been established by the degree of proof required by law, then that caste upon the plaintiff in this case the burden of showing by some affirmative proof that it had no knowledge of any such defense to the note at the time it purchased it. However, gentlemen of the jury, it must clearly appear that when Mr. Ade sold this note his object and purpose was to defraud Mr. Litt. Fraud is never presumed, and when pleaded must be proven, and we can not infer it- Of course, that may be proven by proving circumstances.”

. -We. can not understand how the plaintiff in error can complain of the above proposition, of law as given by the trial judge in face of the fact of special requests Nos. 3 and 4 given to the jury by the court before argument at the instance of said plaintiff in error. Said requests being as follows:

" “No. 3. One is a holder in due course who'has taken the instrument under the following cqnditions:
“That it is complete and regular on its face.
• ‘ ‘ That he became the holder of it before it was due, and without-notice that'it previously had been dishonored, if such was the fact.
“That he took it in good faith, and for value.
‘ ‘ That at the time it was negotiated to him he had no notice of any infirmity in the' instrument or defect in the title of the person .negotiating it.
“No. 4. The title of a person who negotiates an instrument is defective when he obtained the instrument or any. signature thereto by fraud, duress, force- and fear, or other unlawful means, or for an illegal consideration, or when he negotiates it in breach of faith, or under such circumstances as amount to a fraud.”

These two special requests in writing, given before argument and. at the request of the plaintiff in error, are sound in law and certainly cover every issue made by the pleadings and the evidence in the case at bar, and if there is anything in the general1 charge in conflict with these special requests plaintiff in error certainly has no reason now to complain. We think if these propositions of law are properly applied to the evidence offered to determine the issues in this case they are clearly reconcilable.

The one important issue of fact to be determined in this case is, Was the plaintiff a purchaser of the note in question before due? This was a question to be determined by the jury, under proper instructions from the court, -and we think that every phase of the case and the testimony offered was fujly covered as to the law governing the question as to who is a holder in due course by special request No. 3, given before argument. The jury, before it could return a verdict for the defendants, was compelled to find that the plaintiff was not a purchaser before due of the note in question, or that it had knowledge of the defenses claimed by defendants or that Ade knew it. If the jury found that Ade knew of -the defenses and claims of the defendants, which it could have found uyider the evidence as disclosed by the bill of exceptions, then the law as given in special charge No. 4 was applicable. If the jury found that Ade knew of the claims and defenses of the defendants, and this was clearly established by the evidence, which from the bill of exceptions seems clear to us, then inasmuch as the defendants in their answer denied that plaintiff was the owner of the note in due course, and that it had knowledge of the defense and claims of defendants, and submitted proof in support of these allegations, it devolved upon the plaintiff, if it had not already established its claim by affirmative proof, to rebut the evidence offered by defendants in this regard.

The burden of proof of making out good faith in this case under the facts here disclosed is, we think, with the plaintiff. It asserts title as a bona fide holder in due course, before due, and evidence has been offered by the defendants denying this claim. It makes no difference whether the plaintiff pursued the usual course required to establish its claim or not, it must in order to secure the advantages which commercial law confers upon holders of negotiable paper bring itself within the rule. Purchasers of such instruments are entitled to the benefits of that rule only when they have purchased such paper in good faith, in the usual course of business, before maturity, and without notice of any defects or infirmities therein, or any legal and valid defenses thereto.

As to the weight of the evidence, it is expected in cases like the one at bar that the purchaser will testify as to his good faith and want of notice, and the defendants are compelled to rely upon circumstances and surroundings’ to rebut such evidence. Whether the plaintiff in this, case has satisfied this buyden resting upon it, and whether it has made good its claim as purchaser before due and without notice of any defects in the title to or infirmities in or defenses to the note in question were questions of fact to be determined by the jury, unless- the testimony is not only consistent with the good faith of the plaintiff, but is such that no fair-minded person can draw any other inference therefrom. The jury saw the witnesses and passed upon their credibility, their interest in the case, the reasonableness or unreasonableness of their statements, the time, place and manner of the transaction, its conformity to or its departure from ordinary methods of business, and all the facts and circumstances in the case, some of which may be slight, but when taken together aid in the proper determination of the transaction between the parties hereto, which a court can not pass upon as a matter of law.

A reviewing court will not disturb a verdict on the ground that it is against the weight of the evidence, unless upon an examination of all the testimony offered, and upon the whole record, it is satisfied that it was against the manifest weight of the evidence. And not being so satisfied, we will not interfere with the judgment entered on the verdict in this case.

The plaintiff in error, in brief and oral argument, insists that the trial judge erred in not instructing the jury properly and fully as to the law governing the rights of an endorsee of a promissory note with reference to the presumption as to whether. or not it was transferred by the owner to the transferee or indorsee, before due.

Before argument, and at the request of the plaintiff in error, the plaintiff below, the trial judge-gave to the jury special written request No. 1, the same being as follows:

“Except when an endorsement bears date after maturity of an instrument, every negotiation is deemed prima facie to have been effected before the instrument was due.”

We think this is a sound principle of law, and applicable- to the facts in this ease, and fully covers the issue as to this particular question made by the pleadings and facts in this case, and therefore we do not understand how the plaintiff in error has any cause for complaint in this regard.

As to whether or not the bank was the owner and holder of the note in question in du,e course, purchased before due, and for a valuable consideration; as to whether or not it knew at the time it purchased the note of the alleged claim and defenses of the defendants thereto; as to whether it had knowledge of any defects or infirmities of said note at the time it purchased same, and as to its good faith or lack of good faith with reference to the entire transaction were questions of fact to be determined by the jury, under proper instructions from the court.

From an examination of the bill of exceptions we are free to say that upon some of the questions of fact the testimony was somewhat conflicting, and no doubt different minds might reach different conclusions therefrom. Yet the jury having reached its conclusion under proper instructions from the trial court as to the law governing the facts in this ease, as evidenced by the charges given to the jury before argument, as contained in the written requests of the plaintiff in error, the plaintiff below, as well as the law applicable to this ease as contained in the general charge of the trial court, it is not the duty of, nor is it within the province of a reviewing court to say that the verdict of the jury was wrong.

As disclosed by the bill of exceptions and the record in this ease, which consists of nearly two hundred and fifty pages of typewritten matter, we are led to believe from our examination of same that the ease was warmly contested in the trial court, and it necessarily follows that some technical errors have found their way into the record, but none prejudicial to the rights of the plaintiff in error.

Upon our examination of the entire record in the ease at bar, we feel that substantial justice has been done to all parties in interest in this lawsuit. Ye find no error apparent on the record prejudicial to the rights of plaintiff in error.

A majority of this court is of the opinion that the judgment of the common pleas court should be affirmed.

Judgment affirmed.

Shields, J., concurs.

Powell, J.,

dissenting.

I am constrained to disagree with the judgment of affirmance arrived at by the majority of the court in this case. The petition declares on a negotiable promissory note in the short form authorized by Section 11334 of the General Code. It was filed by the first endorsee on the note and proper averments are made to constitute the plaintiff a holder in due course. To the petition an answer was filed setting up two defenses:

1. That plaintiff was not the owner of the note sued on; that the same was not assigned, transferred and delivered for a valuable consideration to the plaintiff before the same was due and payable. It is averred as a part of said first defense that Will IT. Ade, the payee of said note, is the owner and holder of the same and is indebted to defendants in the sum of $2,850, and that for the purpose of delaying defendants in the collection of their said claim Ade and the plaintiff are in collusion and that, in fact, no sale or transfer from said Ade to plaintiff has ever been made. All this is alleged as a part of said first defense.

2. For a second defense, an unliquidated claim for damages against the said Will IT. Ade, who is the payee and endorser of the note sued on, arising out of an alleged breach of warranty in the sale of a horse by Ade to plaintiff in the sum of $2,850 is set up and judgment asked against Ade.

The said Ade was not a party to the suit, nor was any application made by either plaintiff or defendants that he be brought in as such party, with or without leave to answer. A motion was filed by plaintiff to strike said second defense from the answer, because the same is “irrelevant, immaterial and impertinent.” This motion was overruled. It should have been sustained. It is not a defense to the note sued on in the meaning of that term as used in the Negotiable Instruments Code, for defendants admit the execution of said note for good and valuable consideration and do not set up any defect in it or defense against it. This said second defense is not a counter-claim which defendants would be authorized to set off against the note, for it does not arise out of the contract or transaction set forth in the petition as the foundation of plaintiff’s claim, nor is it connected with the subject of the action. One of these two things must exist to constitute a counter-claim. Section 11317, General Code.

It is not a set-off because it does not exist against the plaintiff in the action brought, 'but against a third person who is not a party to the suit, nor could any judgment be obtained against plaintiff on said second defense. It does not arise on contract, nor has it been ascertained by the decision of a court. It is merely an indefinite, unliquidated claim for damages asserted against an individual who is not a party to the suit and does not come within the definition of a set-off as defined by Section 11319 of the General Code. As such second defense is neither defense, counter-claim or set-off as defined by the statutes, it should not have been allowed to encumber the records and it was prejudicial error to overrule the motion to strike it out of the answer. Nothing should be permitted to remain in an answer except matters of defense, counter-claim or set-off. Section 11315, General Code.

So far as the pleadings show in this ease no cross demands ever existed between the plaintiff and the defendants to this action. Defendants have no demand against the plaintiff; their demand is against a stranger to the record, one who is not a party to the suit at all, so that the case is not in any wise affected by the provisions of Section 11321 of the General Code; besides, this section does not apply to negotiable instruments until after the same become due. Lillie v. Bates, 3 C. C., 94; Wyman v. Robbins, 51 O. S., 98.

There is but one defense pleaded to the cause of action set out in the petition and that defense is want of ownership on the part of the plaintiff. All of the testimony admitted on any other subject was erroneously admitted and involved absurd consequences. The result of this case is a good illustration. The defendant in the action makes a claim for damages on account of a breach of warranty in the sale of a horse against a citizen of Indiana who is not made a party to the suit. This claim arises out of a transaction wholly independent of the transaction in which a note was given by the defendant to the citizen of Indiana in the sum of $1,100. It is alleged that the note became the property of a third person who claims to be a holder in due course, or, in the ordinary language of business, an innocent purchaser, and who brings suit against the maker of the note only, who in his turn sets up as a reason why he should not pay the note, that he has an unascertained claim for damages against the payee of the note and this payee is a stranger to the record and is not made a party even after this defense has been pleaded, and the issue thus made is submitted to a jury to determine whether or not the payee of the note owes the maker anything in another and different cause of action; and the jury finds that the payee does owe the maker an unsettled amount, but at least sufficient in amount to offset the note sued on and therefore find for the defendant. This, it seems to me, is a proceeding unwarranted by any rule of law. If the finding and judgment are conclusive of anything, they are only conclusive that the plaintiff is not the owner of the note. Ade, the payee of the note, is not in court at all, and yet it is determined by a jury that he owes enough to offset á note admitted to be valid and without any defense, without'his side of the story ever having been heard and submitted to a court for adjudication. The iniquity of this proposition from a legal standpoint ought to be apparent in the mere statement of it.

On the single issue presented by the pleadings the evidence should have been confined to the ownership of the note by the plaintiff and whether, in fact, he was a holder of the same in due course and entitled to collect it.

I have examined this entire record with reference to the issue of ownership of this note and can not find therein a single word of competent evidence that upholds the contention of the defendants. It is true that the testimony of ITosack and Litt is to the effect that Ade said in their presence when at Frederick-town and Mt. Vernon, Ohio, on the 6th of November, 1914, that he was the owner of the note. Plaintiff was not present when this statement was made by Ade, nor was there any one representing the plaintiff present, yet the court admitted these statements in evidence over plaintiff’s objections. This was error, .and prejudicial error.

I am at a loss to understand the theory of the court in the admission of this evidence. Plaintiff offered to show by another witness who was present a part of the time when these admissions were said to have been made, that Ade had said to him he had sold the note to plaintiff. This evidence was excluded by the court for the reason as given, that Litt was not present when the statement was made. Ade’s statements seem to have been considered competent to bind the plaintiff, although no representative of the plaintiff was present, but the same class of testimony was inadmissible to bind the defendant because he was not present. I do not think any of Ade’s statements so made were competent evidence to go to the jury. But the particular vice that attaches to these admissions is that they have their weight with the jury as an indication of the position of the court on the issues presented. If it is necessary that either of these parties should be present in order to make this evidence competent against him, the other should have been present also to have made it competent and binding against it.

But aside from all this the controlling questions submitted in this case have all been passed on by one or more of the circuit courts of the state adversely to the holding of the trial court in this case and consequently adversely to the judgment of affirmance of the majority of the court, and the judgment of such courts on these questions has been affirmed by the Supreme Court. This suit is brought by the first endorsee of a negotiable promissory note against the maker, the endorser not being made a party. The plaintiff in the suit claims to be the holder in due course and asks judgment for the amount of such note. This claim is denied by the defendants and it is affirmatively averred that the endorser is the real owner of the note; this is the only actual defense pleaded vto the note. True, defendants claim a set-off against the endorser but not against the plaintiff, the only other party to the suit.

The case should have been tried and determined on this issue alone because:

1. The suit must be brought by the real party in interest. Section 11241, General Code. This provision of the statute applies to negotiable promissory notes as well as to all other actions. Nichols v. Gross; 26 O. S., 425; Osborn v. McClelland, 43 O. S., 284. Under these authorities the plaintiff must be the real party in interest, or his action must be defeated. If the answer here means anything, it means that plaintiff is not the real party in interest in this kind of a case; that he is not the owner of the note and a holder in due course, for value, and without notice of any infirmity affecting the instrument. It takes all this to constitute him the real party in interest. If he is not the real party in interest, he should be defeated because none but the real party in interest can maintain the action.

This identical case, so far as general principles are concerned, is found in the ease of Independent Coal Company v. Bank, 27 C. C., 297, or 17 C. D., 297. This action was brought by the first endorsee of a negotiable promissory note against the maker of the note, the endorser- not being made a party to the action. The defense made by answer was that the plaintiff was not the owner of the note, but held it by a fraudulent transfer from the endorser for the purpose of defrauding defendant out of a set-off or counter-claim against the maker of the note arising out of a contract to furnish coal, which contract the endorser had not complied with. Defendants offered evidence to show the contract with the endorser by the terms of which the endorser was indebted to it. This evidence was excluded by the trial court and the circuit court held there was no error in excluding it. The court says on page 299:

“It was not necessary that the defendant should show that if -suit had been brought by the payee it would have had a defense. It was sufficient that the defendant show that the plaintiff was not the owner of the note. If he succeeded in showing this he made a complete defense to the action, for if the plaintiff was not the owner of the noté then it was not the real party in interest as required, by Revised Statutes, 4993. Under this section the real party in interest who brings suit upon a promissory note must be the owner of that note. Such suit can not be maintained by one to whom the note has been transferred, whether by endorsement or by mere delivery for the purpose Qf collection only.”

In the present case, all the evidence relating to the purchase of the horse, Constant, and the warranty of Ade, and the breach of it, was incompetent and immaterial and should have been excluded on plaintiff’s objection, because it was only competent in a suit on a breach of the warranty, in which the warrantor is a party with a right to make his defense, if he has one. The evidence offered and excluded was the same evidence in that ease as the evidence offered and admitted in this ease relating to the purchase of the horse, Constant, and the warranty accompanying such purchase and the breach of it; and if the exclusion of the evidence offered was not error in the case cited, the admission of this evidence in the ease at bar must have been error. The case last above cited was affirmed by the Supreme Court without report. Coal Company v. Bank, 74 O. S., 463.

Again, in this same case just quoted from, another question arose as to the admission of evidence which is conclusive - of a question raised in the case under discussion. Defendant in that case offered to show by its manager that “after this note fell due the payee, in company with the cashier of the plaintiff, appeared at the office of this defendant and together they -were anxious to have this matter settled up, and that thereupon and after a long consultation the payee, to-wit, Mr. Walthour, and Mr. Thrasher, the principal persons in the payee, thereupon said to the manager of the defendant that they then were going to sue that note — the bank were going ,to sue on this note — • and that thereupon the cashier of the bank made no objection or made no claim to be the owner of the note.” This evidence was excluded and the court say upon that subject that “if the witness had testified to exactly what counsel for the defendant stated he expected him to testify to, it would have had no tendency to show that the plaintiff was not the real owner of the note.” And the court say that the exclusion of this evidence was not error. If the exclusion of this evidence was not error, then it seems to me that the admission of the evidence of Ho-sack and Litt that Ade said he was the owner of the note, was error and such error as was prejudicial to the rights of the plaintiff below.

The ease cited was decided right both in principle and upon authority, and while the questions are presented on the exclusion of evidence it is the same evidence, or bore the same relation to the case on trial as was admitted in this case, and if it was not error to exclude it in that ease it certainly was error to admit it in the ease under discussion. The evidence here was clear and conclusive that plaintiff was the owner of the .note sued on and became such owner more than eighteen months prior to the date when such note fell due. ' Plaintiff produced the note in court and offered it in evidence. This alone made a prima facie case in its favor. Out of an abundance of caution the testimony of its cashier, assistant cashier and president were given at the trial, together with exhibits of its record of the transaction, -all of which was uncontradieted and which was conclusive as to the ownership of said note if evidence- of witnesses is to be believed at all. Against this testimony there was not a word of competent evidence offered, and only a few incompetent statements of a party who was not a party to the action.

It seems to me that the trial court misapprehended the issue that was before it and that the judgment of the majority is in direct conflict with the decision of the Supreme Court in affirming the case above cited, and that the judgment of the trial court should have been reversed and judgment given to the plaintiff in error on the admitted facts shown by the record. Minnear v. Holloway, 56 O. S., 148. Many other authorities might be cited in support of the propositions set out in this opinion, but it is not necessary to cite them, as those that are presented are conclusive of the points raised in the decision of the ease.

The several errors, any one of which, in my opinion, would have justified the reversal of the case, are as follows:

1. The overruling of the motion to strike the second defense from the answer.

. 2. The admission of any evidence.relative to the sale of the horse, Constant, the warranty by Ade relative to said horse, and the breach of the same.

3. The admission of the testimony of ITosack and Litt that Ade made the statement in their presence that he was the owner of the note in suit.

4. The overruling of plaintiff’s motion at the close of all the testimony for a directed verdict.

5. In refusing to charge before argument recpiests seven and eight asked for by the plaintiff.

6. The charge of the court relative to any and all other matters than the single issue of, whether or not the plaintiff was the owner of the note in suit. And

7. In overruling plaintiff’s motion for a new trial.


author: Gorman, J.

text:
    AS TO DAMAGES SUSTAINED FROM THE COLLAPSE OF A BUILDING.
    Court of Appeals for Hamilton County.
    The Standard Extract Company v. The H. Belmer Company.
    Decided, March 15, 1915.

      uld Building Heavily Loaded — Collapses During a Flood — Issue as to Whether the Flood or the Load Negligently Placed Caused the Loss.

    One whose negligence, concurring with an extraordinary-occurrence in the natural world resulted in serious loss, can not be held liable for the damage so sustained; but the question whether the two causes concurred in bringing about the loss should be submitted to the jury.

      Thomas K. tfchmuch, for plaintiff in error.

      Fulton & Woost, contra.
   Gorman, J.

This was an action in the common pleas court brought by plaintiff in error to recover damages from the defendant in error for the value of goods injured, and also injury to the business of plaintiff in error.

In January, 1913, the plaintiff in error rented from the Henry Estate and occupied the second and third floors of the building known as No. 10 East Second street in Cincinnati, and the defendant in error rented from the same landlord and occupied the cellar and the first floor of said premises. There was a party wall on the west side of the building, separating it from another building owned by the Henry Estate and occupied in part or in whole by one Klum.

Plaintiff in error sets up in its amended petition that it gave permission to defendant in error to store temporarily on the third floor of the premises on January 13, 1913, about six hundred and fifty kegs of nails, each keg weighing from seventy-five to eighty pounds, or a total of about twenty-five tons, upon the agreement that defendant in error should indemnify plaintiff in error for any loss that plaintiff in error might sustain resulting from the storage of said goods; that the defendant in error in placing said nails on said floor did so negligently and carelessly, by reason whereof the said building collapsed and the goods of plaintiff to the value of $4,097.87 were totally destroyed, and that as a direct result thereof plaintiff was obliged to discontinue its business, whereby it suffered further damage in the sum of $15,912.13, making a total loss to it of $20,000.

Plaintiff’s claim is set out in two causes of action: first, it seeks to recover the damages arising-from the alleged breach of the contract of indemnity; and, second, it seeks recovery on the ground of negligence on the part of the defendant in negligently piling up the nails and in overloading the building.

The defendant admits the placing of the nails on the third floor of the building with the permission of the plaintiff, but denies negligence, and denies that there was an agreement to indemnify plaintiff. The evidence showed that on or about January 13, 1913, the Ohio river was rising rapidly and had begun to flood the cellar and ground floor of said building, and that the defendant, in order to place its goods out of the reach of the rising floods, asked and received permission from some one connected with plaintiff company to remove said nails to the third floor of said building, and did there store or pile them up in the place pointed out for that purpose.

On the trial of the ease the jury returned a verdict for the defendant, and judgment was entered thereon; and the plaintiff in error now asks this court to reverse said judgment. A bill of exceptions in narrative form and a transcript of the docket and journal entries have been filed as a part of the record.

Counsel for plaintiff in error bases his claim for a reversal on five grounds, which we shall briefly note and pass upon. ■

First, it is claimed that the trial court erred in his general charge to the jury in failing to state that there might be two concurring acts of negligence which would render the defendant liable. It was claimed by plaintiff that the collapse of the building was due to the negligence of the defendant in the manner in which it piled the kegs of nails on the third floor against the partition wall in too small a space, and in overloading tbe building greatly beyond the tensile strength of the partition wall; while the defendant denies this alleged negligence, but claims that the building collapsed because of the decay, deterioration, age and imperfect construction of the walls and foundation when it was erected about fifty or sixty years ago, and by reason of the further fact that it had been frequently subjected to the floods of the river and its walls weakened thereby and rendered insecure and unsafe, unknown to defendant until after the collapse. There was evidence tending to establish both of these claims.

In this situation the court in substance charged the jury that. if they found that the direct and proximate cause of the collapse of the building was due to the overloading of the third floor by the defendant, and that the defendant was further negligent and careless in overloading said floor by storing its nails in a careless and negligent manner as alleged in the amended petition and in not distributing them about the floor of the room as an ordinarily prudent person would do, then the defendant would be liable for the damages caused to plaintiff’s property. The court further charged the jury that if they should find from the evidence that the building collapsed because of the inherent defects in the foundation and walls and not by reason of any act of storing or overloading of the building, then the plaintiff could not recover, as under such circumstances the storing or overloading of the building would not be the proximate cause of the injury to plaintiff.

Plaintiff in error claims that the court erred in the first part of his charge in failing to call the jury’s attention to the situation which may have been shown from the evidence, that the collapse might be due to the concurrent causes of the inherent defects in the building and the careless and negligent overloading of the same, and he contends that if such were the case plaintiff would be entitled to recover and that the omission to so charge was such' prejudicial error as calls for a reversal of the judgment.

As to this contention it may be said that if plaintiff desired such a charge he should either have asked the court to give it or should have called his attention to the omission, neither of which courses did he pursue, and we believe that he waived this error, if it was error, by his failure to call the court’s attention to the omission.

But it is doubtful, to say the least, if plaintiff was entitled to such an instruction, assuming that the evidence clearly established that the collapse of the building was due to these concurrent causes. In the first place, it may be that the inherent weakness of the building was a condition and not a cause; and, secondly, it is quite certain that there is a great conflict of authority whether in such cases the court should not instruct a verdict for the defendant or for the plaintiff. See Green-Wheeler Shoe Co. v. Chi., R. I. & Pac. R. Co., 130 Ia., 123; Rodgers v. Mo. Pac. R. Co., 75 Kan., 222.

The facts in these two cases are practically the same, and this was the question to be determined: Was the common carrier of the goods liable for their loss, where there was negligent delay in delivering the goods, and when so delayed an unprecedented flood (an act of God) arose and destroyed the goods? If the goods, in both eases, had been promptly delivered they would have escaped the flood. These two cases were decided directly contrary to one another; in the one case there was an instructed verdict for the plaintiff, and in the other an instructed verdict for the defendant. If the trial court in the case at bar had followed the rule laid down in the Kansas case, supra, he would have instructed a verdict for the defendant, assuming that the damages were the result of the two concurring causes' above mentioned. If the Iowa ease, supra, had been followed, he would have instructed a verdict for the plaintiff. We think the proper course to have pursued would have been to submit to the jury the question of whether or not the plaintiff’s damages were the direct result of the defendant’s negligence or were brought about by reason of the collapse of the building from its inherent weakness, or from some other cause. We do not believe that defendant would be liable if the damages were the result of the concurrent causes claimed to have produced the injury. See Denny v. N. Y. Central R. Co., 13 Gray, 481; Daniels et al v. Ballantine et al, 23 O. S., 532.

For a full discussion of cases of this character, where although the plaintiff was in fault, yet ho damage would have resulted but for an occurrence in the natural world which constituted an extraordinary departure from the usual course of nature, see appendix to article by Jeremiah Smith, Harvard Law Review, Vol. 25, p. 321.

We are also of the opinion that the court’s charge is not open to the criticism urged, because the court stated to the jury that if the building collapsed because of the inherent defects of the building, etc., and not by any act of storage or overloading of the building, then the plaintiff can not recover, etc. So that, under the charge, if the jury had found that the building collapsed by reason of any act of overloading or storing, they would have been justified in finding for the plaintiff.

•Secondly, it is claimed that there was prejudicial error in the court’s charge in iteration and reiteration of parts of his charge, thereby giving undue emphasis to parts of the charge. We have read this charge with care, two or three times, and do not find it open to this criticism.

Third, it is claimed that the court erred in submitting to the jury the question of authority or lack of authority of the agent through whom the agreement of indemnity is claimed to have been made on behalf of the defendant. This question was raised by the issues in the pleadings. It was an issuable fact to be determined by the jury, unless the agency was admitted by the defendant, which it was not. The business of a corporation is conducted by a board of directors, and the directors are the ones and the only ones, acting as a board, who can bind the corporation. If it were shown by the evidence that the directors either generally or specifically conferred power and authority on Albert Belmer to enter into this agreement, then bis authority as agent for the company would be established; but he had no such authority to enter into an agreement to bind the company without the sanction of the board of directors. Bradford Belting Co. v. Gibson, 68 O. S., 442.

As to the fourth ground of complaint, that the court erred in the statement of the pleadings and the presentation of the issues, we are of the opinion that there was no error prejudicial to the plaintiff in this regard. The burden of proof was not upon the plaintiff to show that the latent defect in the building caused its collapse and the consequent damage to plaintiff. This might have been shown under a general denial. See Traction Co. v. Forrest, 73 O. S., 1; Traction Co. v. Stephens, 75 O. S., 171.

Fifth, it is contended that the rule laid down by the court as to the measure of damages was wrong. It must be remembered that it was not for the loss of the goods alone that plaintiff was claiming damages. This element of damages was but about one-fourth of the. amount claimed. aA claim was made for the loss of profits which plaintiff might have realized from its business, and we think the court did not err in laying down the rule to govern the jury in computing the' damages.

On the review of the whole case/we are unable to say that substantial justice has not been done' in this case, and- unless we can do so it would appear that it is our duty to affirm the judgment of the trial court; and this is accordingly done.

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


text:
    PARTITION AMONG “ LIVING HEIRS.”
    Court of Appeals for Wood County.
    Newton N. Stearns v. John A. Stearns et al.
    Decided, May 8, 1915.

      Pleading — Averment as to Whether Property Sought to he Partitioned is Ancestral Arises in Partition, When — Bequest to “Living Heirs.”

    Where a testator bequeaths the residue of his property to his “living heirs” and leaves surviving him both brothers and sisters and half- • brothers and half-sisters, a demurrer lies to a petition filed by a half-brother for partition of property passing under said bequest, where there is nothing in the petition to show whether the property is ancestral or non-ancestral.

      Benj. F. James, for plaintiff.

      8. W. Bowman, contra.
   Chittenden, J.

This action was brought in the common pleas court by the plaintiff to secure partition of certain land and to have the title to such land registered. A demurrer to the petition was sustained and the plaintiff not desiring to plead further judgment was entered in favor of the defendants, dismissing the petition of the plaintiff.

The cause is submitted to this court upon the demurrer to the petition.

The plaintiff claims as a beneficiary under the last will and testament of one Orrin Stearns. The petition alleges that Orrin Stearns in his lifetime was the owner of the property in question, and that he died, leaving a will. After providing for certain specific legacies, the use of the property is given to his wife during her lifetime. It is provided that after the death of his wife, certain sums shall be paid from the estate for a specific purpose, and the will then provides as follows:

“It is my request that the balance óf my estate be equally divided- between my living heirs and the living heirs of my wife, Sarah Ann Stearns, share and share alike.”

The petition alleges that Sarah Ann Stearns died leaving no children. The petition further alleges as the living heirs of Orrin Stearns the following named persons: John A. Stearns, a brother; Silas D. Stearns, a brother; Mary Jane Bucher, a sister; Newton N. Stearns, a half-brother, and also names seven other persons who are half-brothers and half-sisters of Orrin Stearns, deceased. The living heirs of Sarah Ann Stearns are alleged to consist of four brothers, two sisters and two nephews. The plaintiff, Newton N. Stearns, claims an interest in the estate of Orrin Stearns and the right to have partition of the estate by reason of the allegation that he is a living heir of Orrin Stearns, deceased.

It does not appear from any allegation in the petition as to whether or not the property sought to be partitioned is ancestral or non-ancestral property. Section 8574, G. C., provides how property shall descend if it did not come by descent, devise, or deed of gift. Section 8573 provides for the order of descent when the title came by descent, devise or deed of gift. By the terms of Section 8574, G. C., when the decedent leaves no children or their legal representatives, and no husband or wife, the estate shall pass to the brothers and sisters of the whole blood.

It is contended that this section of the General Code has no application in this case, because the petition alleges that the estate of the plaintiff comes to him by will and not by descent, and that the term “living heirs” of Orrin Stearns, as used in the will, includes all persons who answer that description, regardless of the degree of their relationship to the testator. This proposition is said to be based upon the decision of the Supreme Court in Mooney v. Purpose) 70 O. S., 57. We are of the opinion that this latter case does not supply the rule of law governing the interpretation to be placed upon the will of Orrin Stearns as set forth in the petition. It was held in that ease that where a testator bequeathes his residuary estate to his lawful heirs, and the will directs that it “shall be equally divided amongst my lawful heirs share and share alike,” all persons who at the time of the testator’s death answer the description, his “lawful heirs,” are entitled to share in such residuary estate regardless of the degree of tbeir relationship to the testator, and in the distribution of such estate such heirs take per capita and not per stirpes. The question that arises in every case of that character is, who are the lawful heirs ? and the question presented by this petition is, who are the living heirs of the testator and of his widow?

The term “living heirs” designates a class to whom the testator intends his estate to go. We' quote from the opinion in Mooney v. Purpose, at page 64, as follows:

‘.‘This being the only designation or description of those who were intended as beneficiaries under the clause of the will, of necessity resort must be had to the statute, in order to deter7 mine who are the legal heirs of the testator within the meaning of this clause.”

We quote no more than the foregoing from the extended discussion of the subject found in that report.

Resorting then to the statute to ascertain who are included in this class of living heirs, we find that, if this property is nonahcestral property, half-brothers and half-sisters are not “living heirs” within the terms of the will.

The petition failing to contain any averment which brings the plaintiff within the class designated by the will, the allegations are not sufficient to constitute a cause of action on behalf of the plaintiff, and the demurrer to the petition will, therefore, be sustained.

Richards, J., and Kinkade, J., concur.


author: Pollock, J.

text:
    JURISDICTION OF STATE COURTS OVER RAILWAYS ENGAGED IN INTERSTATE COMMERCE.
    Court of Appeals for Franklin County.
    Clarence Casebalt v. The Kanawha & Michigan Railroad Co.
    Decided, June, 1916.
    {Spence, Pollock and Metcalfe, of the Seventh District, sitting in place of Judges of Second District.)

      Service of Summons — Under Section 11272 Upon Kailway Companies Operating Roads Within the State — Jurisdiction of State Courts Over Railways Engaged in Interstate Commerce.

    1. Jurisdiction of the state courts over the person of a railroad company engaged in interstate commerce, to enforce the rights of employees arising under the federal employers act of April 22, 1908, as amended in 1910, for injuries received while engageu in interstate commerce, is not enlarged by that act, but depends upon the jurisdiction prescribed by the state laws.

      2. Provisions of Section 11272, General Code, apply to railroad .companies owning or operating a railroad within that state and service may be made thereon in accordance with the provisions of that section.

      F. S. Monnett, E. Meyers and G. W. Dille, for plaintiff in error.

      Grosvenor, Jones & Worstell, LeBoy Allebach and W. N. King, contra.
   Pollock, J.

Plaintiff in error brought an action against the defendant'in error in the court of common pleas of this county, alleging that the defendant railway company is a corporation organized under the laws of the- state of Ohio, and is engaged in the business of operating a railroad extending from Charleston, West Virginia, to Columbus, Ohio, running into and through the county of Franklin; that on December 24th, 1914, the defendant was operating a railroad engaged in interstate eommepceand plaintiff was in its employ, working on one of its interstate trains; that on that date while so engaged he was injured through the negligence of the defendant, and he asks damages therefor; that his cause of action is governed and controlled by the federal employers’ liability act of 1908.

Summons was issued to the sheriff of Franklin county, and returned by said sheriff- reciting that he served the defendant corporation by handing a copy of the writ to F. B. Sheldon, vice-president of said corporation, the president thereof not being within the county.

The defendant railway company, disclaiming an intention to enter an appearance, filed a motion to quash the pretended service of summons, supported by affidavit alleging' facts which show that its railroad tracks do not extend into the county of Franklin; that it has no property therein other than office furniture • and equipment; that the president has no office in Franklin county, but that F. B. Sheldon, vice-president in charge of operation, maintains an office within Franklin county, where the office of the local, treasurer, auditor and general attorney are also located. This motion was-heard and overruled by the court.

The defendant company then asked leave to file an answer, and afterwards an amended answer, in both of which it disclaimed any intention of entering an appearance, and objected to the jurisdiction of the court over the person of the defendant on the grounds stated in motion, but further answered to the merits of the case.

The cause was placed on trial to a court and jury, and at the close of the plaintiff’s testimony the defendant made a motion to direct a verdict on the ground that the court did not have jurisdiction over the person of the defendant. This motion was then sustained, to the sustaining of this motion the plaintiff is prosecuting error.

The testimony in the case shows substantially the same facts as were set out in the affidavit in support of the motion to quash the service, and the only question submitted to this court for determination is whether the court obtained jurisdiction of the person of the defendant by service on the vice-president within Franklin county, where the defendant maintained an office in charge of the vice-president and other officers.

The plaintiff urges, first, that the federal employers’ liability act of 1908, as amended in 1910, Section 6, confers jurisdiction over the person of a railroad corporation engaged in interstate commerce in any county where it maintains an office such as set out in the affidavit in support of the motion in this case.

Section 6 of this act, so far as it refers to the question, now before this court, is as follows:

“Sec. 6. That no action shall be maintained under this act, unless commenced within two years from the day the cause of action accrued.
“Under this act an action may be brought in a circuit court of the United States, in the district of the residence of the defendant, or in which the cause of action arose, or in which the defendant shall be doing business at the time of commencing such action. The jurisdiction of the courts of the United States under this act shall be concurrent with that of the courts of the several states, and no case arising under this act and brought in any state court of competent jurisdiction shal] be removed to any court of the United States.”

The second paragraph provides for the jurisdiction over the person of the defendant in the Circuit Court of the United States, and would give that court for this district jurisdiction over the defendant under the facts in this case. This does not refer to state courts, but only to the federal courts; but the second sentence provides that the jurisdiction of the courts of the United States under this act shall be concurrent with that of the courts of the several states, and that no case arising under this act and brought in any state court of competent jurisdiction shall be removed to any federal court.

It is claimed that by this sentence the state court’s jurisdiction over the person of a defendant is extended or made equal to that of the federal court. The plain language of this sentence will not bear such a construction." All that is intended from its langiiage is that when a state court has jurisdiction over the ■person of a defendant, that the action may be maintained either in the federal court or in the state court, but it does not enlarge the jurisdiction of the state court over the person of the defendant from that conferred by the state,

If any doubt could exist as to this construction of the statute, we think it has been fully set at rest by the Supreme Court of the United States in the case of Mondau v. New York, New Haven & Hartford Railroad Company, 223 U. S., page 1. In the ninth proposition of the syllabus the court say -.

“Jurisdiction of an action to enforce the rights arising under the employers’ liability act of April 22, 1908, regulating the liability of interstate railway carriers for the death or injury of their employees while engaged in interstate commerce, may not be declined by the courts of a state whose ordinary jurisdiction as prescribed by local laws is adequate to the occasion. ’ ’

And further along on the same page the justice uses the follow-says :

“The amendment, as appears by its language, instead of granting jurisdiction to the state courts, presupposes that they already possess it. ” ■

And further along the same page the justice uses the following language:

“We deem it well to observe that there is not here involved .any attempt by Congress to enlarge or regulate the jurisdiction of state courts, or to control or affect their modes of procedure, but only a question of the duty of such a court, when its ordinary jurisdiction, as prescribed by local laws, is appropriate to the occasion, and is invoked in conformity with those laws, to take cognizance of an action to enforce a right of civil recovery arising under the act of Congress, and susceptible of adjudication according to the prevailing rules of procedure.”

It is true that the court in this case bad before them a question of the jurisdiction of a state court over the subject-matter, but the remarks of the court quoted above clearly show that there was no attempt by courts to enlarge the jurisdiction of the state courts over the person of the defendant in actions arising under this act, but only that the court could not refuse to take cognizance of the action when it had jurisdiction under its ordinary state procedure,

We must turn then to the state statutes to determine whether or not the court had jurisdiction over the person of the defendant corporation in this action.

Section 11272 of the General Code provides:

“An action other than one of those mentioned in the next four preceding sections, against a corporation created under the laws of this state, may be brought in the county in which such corporation is situated, or has or had its principal office or place of business, or in which such corporation has an office or agent, or in any county in which a summons may be served upon the president, chairman or president of the board of directors or trustees or other chief officer. ”

If this section is applicable to a corporation engaged in operating a railroad, it would give the court jurisdiction over the defendant when the service was made as in this ease.

The plain language of this section would include any corporation created under the laws of this state. But it it urged that jurisdiction can not be obtained over a railroad company owning or operating a railroad by virtue of the provisions of that section, but that jurisdiction is only obtained when service is had under the provisions of Section 11273 of the code, which provides^

“An action against * * * a railroad company * * * owning or operating a railroad * * * may be brought in any county through or into which said line of railroad * * * passes or extends.”

This section does not by its terms exempt a railroad company from the provisions of Section 11272, but it is urged that “may” should be read “must,” and that it does exempt it from that section by implication. The former section includes any corporation created under the laws of this state, and would authorize bringing an action against a corporation engaged in railroad business just as it would against any other corporation, unless by the provisions of the latter section the provisions of the former are repealed by implication so far as it includes railroad companies and others mentioned in the later section.

The repeal of a statute by implication is not favored. The Supreme Court of this state in Ludlow Heirs v. Johnston, 3 Ohio, 565, say:

“When the provisions of two statutes are so far inconsistent with each other that both can not be enforced, the latter must prevail. But if, by any fair course of reasoning, the two can be reconciled, both shall stand. When the Legislature intend to repeal a statute, we may, as a general rule, expect them to do it in express terms, or by the use of words which are equivalent to an express repeal. No court will, if it can be consistently avoided, determine that a statute is repealed by implication.”

This same principal was affirmed in Ohio, ex rel Dudley, 1 Ohio St., 441; Cass v. Dillon, 2 Ohio St., 610; and in Eggleston et al v. Harrison, Assignee, 61 Ohio St., 404, we find the following:

“An enlarged meaning, beyond the import of the words, will not be given to one act in order to repeal another by implication.”

Applying these rules in the construction of the sections under consideration, the latter section does not repeal by implication the jurisdiction of a court over a railroad company conferred by the former section. The latter section, in place of limiting the jurisdiction of the court over railroad companies exclusively to the provisions of that section, is cumulative or in addition to the jurisdiction conferred by the former section.

It is urged that to place such a construction upon the provisions of these sections “would greatly impair and hamper the business and public service of the railroads.” Granting that this is-correct, it should not affect the construction that courts would place upon these acts. If the language of an act “is plain and free from doubt, an effect must be given to its clear import without regard to the consequences which may result.” Slingluff v. Weaver, 66 Ohio St., 621.

We think the provisions of Section 11272 of the General Code apply to corporations created un4er the laws of this state owning or operating a railroad, and that the court of common pleas had jurisdiction of the person of the defendant by virtue of the 'provisions of this section. Holding as we do, the question of whether the defendant entered its appearance by answer is not before the court.

The judgment of the court below is reversed. Exceptions ’ noted.

Spence, J., and Metcalfe, J., concur.