text:
    ASSESSMENTS — INJUNCTION.
    [Hamilton (1st) Court of Appeals,
    December 6, 1915.1
    Jones, Jones and Gorman, JJ.
    Cincinnati Ice Co. et al. v. Cincinnati (City) et al.
    Special Assessment Not Enjoinable Unless Benefits Convincingly Shown Not Equal and Market Value Alone Not Sufficient.
    A special assessment is not enjoinable on the ground that the benefits are not equal to the assessment unless it is clearly and convincingly shown, nor will the question of market value be-fore and after the improvement alone be considered.
    Appeal.

      Geo. J. Slaline and John J. Acomb, for plaintiffs.

      Walter M. Schoenle, City Sol., and Frank K. Bowman, Asst. City Sol., for defendants.
   JONES (O. B.), J.

This is an action to contest the validity of an assessment for the improvement of Livingston street, by paving with granite, heard on appeal from the court of insolvency.

While the petition contains allegations of irregularity in the proceedings of council, no attempt was made to support them by any evidence. The only evidence offered by plaintiffs was for the purpose of showing that the assessment was in excess of the benefits. Testimony was submitted by plaintiffs to show that the market value after the completion of the improvement was no greater than it had been before. Defendants, however, produced testimony showing that the market value of plaintiffs’ respective lots directly after the improvement exceeded their value immediately before the improvement by a sum largely in excess of the amount of the assessment.

The street had been improvéd by bowldering in 1867 and 1872. There had been no subsequent improvement until the one in question, and the pavement and eurbs were out of repair and in bad condition. The- evidence showed that the real estate in that locality had suffered a general deterioration in value. So, even if the evidence of plaintiffs were taken to the exclusion of that of defendants, it might still be possible that a considerable benefit had been conferred upon the abutting lots by this improvement, even though the market value had remained the same.

It is true that the foundation for the support of a special assessment is the special benefit conferred by the improvement, and that such assessment can in no case exceed such benefit. Chamberlain v. Cleveland, 34 Ohio St. 551; Walsh v. Barron, 61 Ohio St. 15 [55 N. E. 164; 76 Am. St. 354], and Walsh v. Sims, 65 Ohio St. 211 [62 N. E. 120].

But an assessment will not be enjoined on the ground that the benefits are not equal to the assessment, unless it is clearly and convincingly shown. Nor will the question of market value before and after the improvement alone be considered. McMaken v. Hayes, 29 O. C. C. 535 (10 N. S. 38), and Prentice v. Toledo, 30 O. C. C. 568 (11 N. S. 299).

In this case the evidence fails to convince the court that the assessments are in any instance in excess of the benefits conferred by the improvement, and the petition will therefore be dismissed at plaintiffs’ costs.

Jones (E. H.), and Gorman, JJ., concur.


source: Caselaw Access Project

author: ALLREAD, J.

license: Public Domain

text:
    ACTIONS — RELEASES.
    [Hamilton (1st) Court of Appeals,
    March 24, 1916.]
    Ferneding, Kunkle and Allread, JJ., of the second district sitting by designation.
    William F. Klages v. Frank G. Kronenbitter et al.
    Settlement by Person Injured with Owner of One of Two Automobiles In Collision, Bars Action Against the Other
    An agreement by a person injured in a collision between two motor vehicles, whereby he contracts with the owner of one of the trucks, in consideration of the sum of $800 “on behalf of himself, his personal representatives and assigns” not to institute or maintain an action for the recovery of money for the accident, stating further that such settlement was a “full, complete and adequate compensation” for the injuries received, is more than a mere covenant not to sue, and bars an action against the owner of the other vehcile for such injuries.

      James ill. Uengst, for plaintiff in error.

      C. D. Saviers, for defendant in error.
   ALLREAD, J.

Klages, the plaintiff below, brought suit against the defendants to recover for a personal injury alleged to have resulted from the negligence of the defendants in so operating their automobile as to collide with a motor truck of the Gambrinus Brewing Company, causing the latter to strike and injure plaintiff.

There is no averment in the petition that the brewing company was negligent.

The first defense of the second amended answer of the defendants is a general denial.

The second defense, so far as material, is as follows:

“On or about January 14, 1914, the plaintiff, William F. Klages, entered into a contract of settlement with the Gambrinus Brewing Company, the corporation mentioned and described in plaintiff’s petition, whereby, in consideration of the sum of eight hundred dollars ($800), he, the said plaintiff, William F„ Klages, on behalf of himself, his personal representatives and assigns, did covenant and agree with said the Gambrinus Brewing Company that be nor they would at any time thereafter institute, maintain, or prosecute any proceeding at law or equity against the said the Gambrinus Brewing Company, its successors or assigns, for the purpose of recovering money or of having any other remedy against the said the Gambrinus Brewing Company, its successors or assigns for or on account of said accident, which occurred on November 9, 1913, as a result of a collision between the automobile of the Gambrinus Brewing Company and the automobile in which the defendant had an interest.
“Defendant says that said sum of eight hundred dollars was a full, complete and adequate compensation for all of the injuries received by said plaintiff as he well knew at the time he received the same, as well as a bar to any claim against the defendants.”

A demurrer was overraled to the second defense above referred to, and the plaintiff not desiring to plead thereto, final judgment was rendered in favor of the defendants.

The only question, therefore, is whether such second defense is sufficient to constitute a bar to the plaintiff’s cause of action. Wo think the agreement between the plaintiff and the Gambrinus Brewing Company as alleged in the above defense constitutes more than a mere covenant not to sue. The distinct averment was made that it was a contract of settlement. The consideration for such contract of settlement and covenant not to sue was eight hundred dollars, which is alleged to be the full amount of plaintiff’s injuries. Having, therefore, received from the brewing company the full amount of his injuries and having executed a contract of settlement with the brewing company, the plaintiff would have no further right of action against the defendants who are alleged to have negligently contributed to the injury.

The judgment of the court of common pleas is, therefore, affirmed.

Ferneding and Kunkle, JJ., concur.


author: GRANT, J.

text:
    ASSIGNMENT — CONFLICT OF LAWS — WILLS.
    [Cuyahoga (8th) Court of Appeals,
    February 11, 1918.]
    Grant,. Leighley and Dunlap, JJ.
    Eva Davies Lozier v. Liston L. Lewis, Trustee, et al.
    Assignment of Interest Under Will, Executed in NewYork by Resident of Ohio, Not Revocable Because in Derogation of New York Law.
    The terms of a will, executed in New York by a resident of Ohio, temporarily sojourning in that state, in the absence of evidence of a contrary intention on the part of the testator, are governed by Ohio law; hence, a beneficiary thereunder who is a resident of New York and has made an assignment of his interest in the will can not thereafter revoke the assignment on the ground that it is in derogation of the law of New York, especially since the validity of the assignment under the law of Ohio is not disputed.
    [Syllabus approved by the court.]
    Error.

      Goulder, White & Gary, for plaintiff in error.

      Treadway & Marlatt and White, Johnson, Cannon & Neff, for defendants in error.
   GRANT, J.

The facts necessary tu a determination of the question raised by this record are not in dispute.

In 1905, Mary M. Lozier, an inhabitant of Ohio, but then' temporarily sojourning in New York, in that state executed her last will, the parts whereof that are material in this controversy, being in the following words;

“Fifth: I hereby give and bequeath to Samuel Reger of the Borough of Brooklyn, county of Kings, city and state of New York, the shares of capital stock in the Lozier Motor Company of New York owned by me, in trust nevertheless to divide the same into four equal parts and to hold one of said parts for, and to pay the dividends derived therefrom to, William A. Keener, the dividends so received by said Keener to be paid by him in the proportion of two-thirds and one-third to my son Edwin R. Lozier, and his wife Eva Davies Lozier as provided in paragraph sixth of this will with reference to the trust therein created, and to hold one of the three remaining parts for each of my three children, Henry A. Lozier; Jr., Bessie Lozier Gregg and Joseph T. Lozier, as herein provided, paying to each of said three children the dividends derived from the one-third part held for said child.
“In the event of the death of Joseph T. Lozier during the continuance of the trust hereby created for his benefit, the income derivable therefrom shall be paid to his next of kin during the life of Henry A. Lozier, Jr., provided the said trust continues so long.
“In the event of the death of my son Henry A. Lozier, Jr., or my daughter Bessie Lozier Gregg, the dividends derived from the trust created for his or her benefit shall be payable during the lifetime-of Joseph T. Lozier, provided the said trust continues so long, to the next of kin of such deceased child.
“No portion of the stock allotted to any one of these four trusts shall be sold during the continuance of these trusts, without the consent of the trustee and one-half the number of the beneficiaries.
“None of the trusts created in this paragraph shall continue beyond the period of ten years from the taking effect of this will.
“On the termination of the foregoing trusts the one-fourth part of the stock of the Lozier Motor Company of New York held in trust for William A. Keener, or its proceeds in the event of sale having taken place, shall be transferred and delivered over to the said William A. Keener, in trust, however, in the proportions and in the manner and for the uses and purposes described in paragraph sixth of this will; and in the event of the termination of the trust described in the said paragraph sixth prior to the termination of the other trusts created in this paragraph (.to wit, paragraph fifth) the said one-fourth part of the stock held in trust for William A. Keener shall be treated and disposed of as part of my residuary estate disposed of by paragraph seventh of this will.
“On the termination of any one of the trusts created in this paragraph", other than the trust created for William A. Keener, Ihe stock allotted to such trust, or its proceeds in the event of sale having taken place, shall be transferred and delivered over to his or her issue, if any, and in default of such issue shall be treated and disposed of as part of my residuary estate disposed of by paragraph seventh of this will.
‘ ‘ Sixth: I give and bequeath to William A. Keener of the borough of Manhattan, city, county and state of New York, one-i’ourth of my residuary estate in trust nevertheless, to invest the same and pay two-thirds of the net annual income derived therefrom to my son Edwin E. Lozier during his life, and to pay one-third of the net annual income derived therefrom to Eva Davies Lozier, wife of my said son Edwin B., for life or until she remarries. On the death of my said son Edwin E. Lozier, two-thirds of the trust fund hereby created in this paragraph shall be transferred and delivered over to his issue, if any, and in default of issue the said trust shall be continued until the death or remarriage of Eva Davies Lozier, the income from the said two-thirds to be paid to the said Eva Davies Lozier for life or until she remandes, and upon her death or remarriage be treated and disposed of by paragraph seventh of this will. On the death or remarriage of the said Eva Davies Lozier, the said two-thirds to be paid to the said Eva Davies Lozier for life shall be transferred and delivered over to the issue, if any, which she may have by my son Edwin E. Lozier. In default of sueh issue the said one-third shall be treated and disposed of as part of my residuary estate disposed of by paragraph seventh of this will.
“In the event of the said Keener’s death or his refusing to act as such trustee, or resigning said trusteeship, I hereby designate Liston L. Lewis of the borough of Brooklyn, county of Kings, city and state of New York, as trustee of this fund.”

Subsequently and while the testatrix was still, or again, sojourning in New York, she executed a codicil, to the will, changing the proportions in which her son and his wife, the plaintiff, should take the income to be derived from the trust created by the body of the testament — a change not material in the present consideration, and making no other.

In 1906 the testatrix died, in this county, being still an inhabitant thereof.

The probate of the will, therefore, appertained to the probate court of Cuyahoga county, in which it was accordingly duly proved and is of record.

In 1908 the plaintiff sued her husband for a divorce. The result of that suit was a decree for a divorce absolute, because of the husband’s aggression.

The wife’s claim for alimony in that action was settled by the parties while her suit was pending — the avails to her being a transfer of the interest of the defendant Edwin E. Lozier arising from the will of his mother in question.

This transfer was evidenced by the following assignment and the coupled power annexed to it:

“Know All Men by These Presents, That I, Edwin Eoss Lozier, of New York City, borough of Manhattan, county and state of New York, in consideration of ten dollars ($10) to me in hand paid by my wife, Eva Davies Lozier, and other good and valuable considerations, the receipt of which is hereby acknowledged, have sold, assigned, transferred and set over and by these presents do sell, assign, transfer and set over unto Eva Davies Lozier all my right and interest in and under the last will and testament of my late mother, Mary M. Lozier, the same having been executed on the twelfth day of December, 1905, and in and under a codicil to said will and testament of my said mother, Mary M. Lozier, dated the twenty-ninth day of October, 1906, together with every other benefit or advantage thereunder that may now be had or obtained by me, to be held, received and enjoyed by her during her life.
“And I do hereby make, constitute and appoint Eva Davies Lozier my true and lawful attorney, irrevocable, for me and in my name, place and stead, and at her own cost and expense to ask, and during her life demand, and by all lawful ways and means receive from William A .Keener, the trustee named in the paragraph marked ‘Sixth’ of the said last will and testament, and the paragraph marked ‘Second’ of the codicil thereto, all moneys directed to be paid or delivered by him to me in accordance with the terms of said will and codicil.
"In Witness Whereof I have hereunto placed my hand and seal this thirteenth day of November, 1908.
“Edwin Ross Lozier, L. S.”

This paper was duly acknowledged.

The trustee named in the will was a resident of New York, as was recited in it, at the time it was made and so continued when it was proved. He accepted the trust, qualified as trustee and took upon himself the performance of the duties imposed by the relation.

The assets constituting the body of the trust, consisting of stocks, bonds and securities, were in New York when the will was made. They remained there till the death of the testatrix and thereupon passed to the first trustee and were in his possession until his subsequent death. When he died, the alternative trustee nominated in the will, the defendant Liston L. Lewis, succeeded to the trust in his stead and to the assets named, in continuity of location in New York. He received his designated appointment from a New York court, in which he gave bond, being domiciled in that state at all times after the testatrix executed the will. Before the commencement of this action, however, he sought and received an appointment as testamentary trustee from the probate court of this county, in which he has accounted as such, in accordance with the requirement of the Ohio statute in that respect. The domicile in New York of both the original and the substitute trustee was known to the testatrix at the time she made the will.

Edwin R. Lozier, the defendant and primary beneficiary in the trust, has been continuously an inhabitant of New York from a time anterior to the execution of the will until the present. His wife, the plaintiff, was domiciled there' before the date of the will and so remained till after the execution of the assignment mentioned. She removed to Ohio and was a resident of Cuyahoga county before and at the time she commenced this action.

The trustee paid the plaintiff, regularly, the income assigned to her by her former husband until the year 1915, at which time the one then executing the trust and a present defendant was notified by Edwin R. Lozier to make no other payment to b.er, because, as he said, he had revoked the assignment theretofore made by him to her, with the power annexed to it, thereby resuming his first right and demanding that all further payments be made to him only. The defendant trustee thereupon ceased making payments to the plaintiff, and declined to do so in response to a demand by her. Whereupon she brought this action to compel payment to her, she not consenting to the purported revocation of the assignment by her former husband, or to his attempted reclamation of the trust income.

The latter, by way of defense to the action, pleaded and proved a statute of New York, enacted before the execution of the will and substantially operative in that state at all times since, as was said, and which provided as follows:

‘ ‘ The right of the beneficiary to enforce the performance of a trust to receive the income of personal property and to apply it to the use of any person, can not be transferred by assignment or otherwise. But the right and interest of the beneficiary of any other trust in personal property may be transferred.” # * =»

Before the notification that the assignment had been revoked this law was somewhat changed in verbiage, but not in substance, operation or effect.. The defendant, the trustee, answered, professing to stand neuter and taking the position, in substance, of an interpleading party.

Upon issues properly joined, to which the foregoing recited facts are relevant, the case was brought to trial in the court below without a jury.

The evidence brought forward standing in substance as has now been stated, the court, upon the facts, held the law to be Avith the defendants and for them gave judgment accordingly.

That judgment we are asked in this proceeding to reverse.

The question is single: Is the case to be determined by Ohio law or that of New York?

Its resolution, either way, makes it simple as well as single. For it is admitted that if Ohio law is to be applied Lozier must keep his engagement, because in this state and by its laws he was at liberty to make it and may be held to it: It is equally certain that the assignment that he undertook to make of' his ' right to the income of the trust fund was in New York by law forbidden, and the attempt to make it was inert and a nullity. The landmark of the defendant’s concession at this point is stated in his brief as follows:

“We make no question that for most purposes the will of Mary M. Lozier, though executed in New York, is governed by the law of Ohio, where she was domiciled at the time of her death. In all matters relating to the execution of the will, to its construction and validity, the law of Ohio governs; but we think with this concession, the control of the law of Ohio ends. ’ ’

Of course courts will not be expected to be astute in helping a man depart from his agreement once made, after having received what he deemed a meritorious consideration for making it. Still, except in swaying the balance, what may appear to be an equitable footing can have no place where the question is what we have here.

In matters of contract at least, the thing to be done really is to reach the intent of the parties as to the place and its accompanying law, where and by which the transaction is to be governed. If this can be gathered from the express direction of the instrument, or impliedly from the circumstances, the in-rent may be found and the question is answered. The rare exception is where the surroundings point to an attempt to commit a fraud on the law, in which case the purpose will be defeated by disregarding the intention. If we may apply that rule to this case, we find no expression in Mrs. Lozier, senior’s, will indicating a purpose or a preference as to where the trust created by it should be executed; the words of the instrument are not demonstrative in that respect; they point out no forum other than that of the will as a whole for the administration of the trust which it creates. The mere fact that the mechanical act of signing the will was performed in New York and away from the settled domicile of the testatrix is not, we think, of itself and without more, significant to confer jurisdiction on the courts of her sojourn in administering it, or any part of it; at most it may be regarded as a circumstance which, in concurrence with others, may fix a governing intent in the matter. Indeed, we do not know that more is claimed for it here. The other surroundings, said to be more or less indicative of an intention to submit the trust to the control of New York law, are that the trustees named in succession were residents of New York to the knowledge of the testatrix when she made her will; that the son then was, and has ever since been, an inhabitant of that state, as was also his wife up to a time subsequent to the assignment to her by her then husband of his share of the trust income; that the courts of New York without objection took some jurisdiction by way of ratifying the testamentary appointment of the alternative trustee and becoming the custodian of his bond, and that ■the securities constituting the body of the trust were physically in New York, to the knowledge of the testatrix, both when she executed the will and at all times since. It is said to have been the opinion of the court below that from all the circumstances an intention might be found in the mind of the testatrix, amounting to a pointing out of the New York forum rather than that of Ohio in which this trust should be discharged, thus importing into her will the New York law applicable to this part of the instrument, and that the judgment under review proceeded on that footing. The ordinary legal situs of stocks and securities is that of the person of the owner; it is ambulatory only as the owner is; it follows and keeps its identity with the domicile of the owner, primarily if not conclusively. This will shows no conscious attempt, or wish, on the part of the owner to separate the situs of the securities from herself or to prevent it from following her. She did not bring or send the securities from her own domicile to New York; they were there, fortuitously for aught that appears to the contrary, from the time of their issue. Their being there may have been an accident or from considerations of their safety or convenience of access or use by the owner. But that they were there from a design by her that they should be divorcees from herself — a mensa et thoro — does not appear, nor, as we think, can that condition be extracted as a legal consequence of all the facts and surroundings of the ease. It can not be that because one dies having a safety deposit box in each state of our Union, or a trust involved in it, his estate must by possibility be administered according to forty-nine different sets of laws, as each may be invoked, subject to all the elashes thence resulting; our text-boobs on conflict of laws would in that event stand in need of revision and enlargement. In regard to what the New York court did in the case in hand, its position seems to have been no more than that of an honorable neutral, as the court below is said to have said. Its action in respect of.the bond and ancillary appointment of the nominated trustee, if more than perfunctory, was only to husband the trust in a matter of formality; it evinced no purpose of taking over the substantive jurisdiction to the exclusion of that of origin or to perform, other than an office called for by comity between jurisdictions, as we view the matter. And such is said to have been the view of the court .of common pleas at this particular point.

¥e can find in the circumstances of this case no single circumstance which we can regard as a piece of evidence going to show, that the testatrix chose the courts of New York rather than those of her own state as the instruments to execute the trust which.her will has created. And since no one circumstance points to a designation of a forum to make effectual her purpose, it follows that all the circumstances together will not work that, result.

We .have examined with proper attention the authorities cited and discussed in the briefs. For the most part they will not be more particularly mentioned here.- We have also attended to the distinction claimed to take off the effect of some of the cited- cases, the argument being that they have to do-with “the question of the-validity of the-will,, and not at all with .the question of the assignment of property subject tó a trust created by will,” We do not purpose to deal with this contention very much,- except .in- result.

It is proper to say in passing that the plaintiff also asks the benefit of Sec. 47 of the “Decedent’s Estate Law” of New York, to-neutralize the statute-of-that state forbidding assignments, already quoted. It is enough to say that the record before us does not- show by proof or exemplification that See. 47 is- on the statute books of New York at all. We-can not consider it.

.We. proceed to refer to some authorities — mostly text-books ' ■ — in muniment.of the conclusion to'which we have come in the ease; keeping in view, bnt not necessarily allowing, the elaimed distinction referred to, which must run through all that we have' to say on the subject, more or less.

Wharton, Conflict of Laws, p. 1322, says: ■

1 ‘ The courts of a state which is neither the domicile of the testator, nor the place where the trust is to be administered, will remit the personal assets found there to the former state or country for the purposes of the trust, though the same would offend its own laws against perpetuities.”

Again he says, p. 1325:

“The combined effect of the New York decisions is to estab-' lish the rule that to bring a bequest of personal property within the New York statutes against perpetuities and suspension of absolute ownership, the testator must not only, have been domiciled in that state, but the will must also contemplate that the' trust shall be executed there, or at least it must not provide for its administration elsewhere.”

In Page, Wills, Sec. 35, it is said:

“Where the trust may be executed in the testator’s domicile in compliance with law there, a trustee can not make the trust unenforceable by- withdrawing the trust funds to another state where such trust is void as in unlawful restraint of alienation.”

The author allows two exceptions to the rule: When the testator directs that the proceeds be sent to another jurisdiction, there to be applied to the purposes of the trust, the courts of his domicile may help to enforce it by applying the law of that state; but not, as we infer, to defeat it. And where the testator directs specific funds to be removed to another' state, to be administered there, the law of that state will govern.

In 5 Ruling Case Law, 1024, it is said:

“The general principle that a1 will of personal property is • governed by the lex domicilii of the testator applies to the valid- • ity of a bequest of personal property as affected by the'rule' against perpetuities or suspension of the power of alienation, assuming that the will does not fix a definite location, beyond the state or country of the testator’s domicile, where "the fund is to be held or administered. And it has been held that this rule governs even though the property, the trustee and most of the beneficiaries are in another state, by whose law the bequest would be void. But the purpose of the rule against perpetuities is strictly local, and so if a definite place is fixed wherein everything pertaining to the trust shall be located, then the rule changes, and its validity so far as the rule against perpetuities is concerned is tested by the law of the place that has been fixed. So a bequest of personal property, upon a trust to be administered in a foreign country, by the law of which it is valid, will not bo held invalid by the courts of the testator’s domicile, even though it contravenes the law of that domicile against per-petuities. ’'

Passing from the generalizations of text-writers, we shall now comment on one ^concrete case, with particular attention to its parallel facts with those of the case at bar in some points which we regard as important. It is Chase v. Chase, 84 Mass. (2 Allen) 101.

The will of an inhabitant of Massachusetts was made in that state and was proved therein upon the testator’s death; and the estate was administered there.

This will created a trust as follows:

“I give and bequeath unto my son George Hazen Chase and my friend Jeremiah Hacker of Philadelphia, ten shares in the New Market Manufacturing Company, and the sum of seven thousand dollars to be held by them and the survivor of them upon the following trusts, namely, that they shall keep the same invested in such stocks and securities as they may think best, and also may appropriate any part of it to the purchase of real estate, if at any time they should think it for the interest of my son and his family to do so, and pay the income and annual interest thereof to my son, Philip Brown Chase of Philadelphia, every year during his natural life, for the support of himself and his family and the education of his children, and upon the decease of my said son, my said trustees or survivor of them shall divide the principal of said trust fund in their hands in equal portions among all the issue of my said son. ’ ’

The son, Philip B. Chase, and his family were residents of Philadelphia, continuously, from the making of the will to the bringing of the action. The will relieved the trustees from giving bond. Both trustees qualified, but before suit was brought the one resident in Philadelphia resigned and thenceforward the trust was executed by the Massachusetts trustee alone.

The son, it was alleged, proVed worthless, squandered the trust income in riotous living and allowed his family to be in want.

The wife and their five children thereupon brought their action in the courts of Massachusetts, in the county where the will had been admitted to probate.

The plaintiffs asked for “an order requiring the trustee to appropriate and pay such portion of the income annually towards the maintenance of the family of Philip B. Chase and the education of his children as the court might deem fit and proper, ■' * * and for other relief.” The report then goes on to say:

‘ ‘ The defendant, Philip B. Chase, demurred to the bill, assigning for causes that the court has no jurisdiction of his person, or of any controversy between him and the plaintiff, both being residents of a foreign state; that the bill states no case for equitable relief; and that the will, as set forth, requires the trustee to pay over the trust fund to Mm, and if any subsequent trust is therein created, it can not be enforced in this suit, or by this court.”

The whole ease was reserved for determination to the supreme judicial coui’t of Massachusetts.

That court proceeded to split the trust, so to say, by holding that Philip was a subtrustee for his family — although the will in terms vested in him the absolute right to receive the income— and held that the wife and children could enforce the secondary trust in the courts of Massachusetts, and compel the husband and father to share the usufruct with them against his will.

Coming to the question of the disputed jurisdiction of the Massachusetts court, Chief Justice Bigelow said:

“The objection to the jurisdiction of the court can not prevail. The residence of the trustee and cestuis que trust out of the commonwealth does not take away the power of this court to regulate and control the proper administration of trust estates which are created by wills made by citizens of this state, and which have been proved and established in the courts of this commonwealth. The legal existence of the trust takes effect and validity from the proof of the ivill and the right of the trustee to receive the trust fund is derived from the decree of the probate court.”

The chief justice then says that the residence in the state of the acting trustee — the differentiating fact between that case and this case — is “another ground” for taking jurisdiction, his person being within the grasp of the local courts, giving the latter the physical power by injunction to restrain him from making payment of the income to the named beneficiary in the trust. But this ground is in muniment of that already taken independently, and not at all in derogation of it or of the principle substantively asserted outside of it; the court assumed full jurisdiction without that consideration.

It should seem as if here were something more than passing on the validity of the will within the only limits which the defendant’s brief allows may be done, namely, as to the formal execution, probate and reeord of it. In other words, it deals, effectually, with the essential validity of the will, in distinction from its formal validity — a difference much discussed in the cases, and the power to do -which seems to be clearly denied in the brief. It declares the paramount authority of the courts of Massachusetts “to regulate and control the proper administration of trust estates,” over that of the jurisdiction of the domicile of both the beneficiary claiming and the one resisting, at the suit of the former over the protest of the latter — his sole enjoyment of the income having been exercised for years and theretofore not denied as a vested right of his. It enters the very .citadel of the trust — and of the brief here, as we are given to understand' it — seizes upon what is claimed to be an inviolable right to the contrary, and sequestrates and deflects to the enjoys ment of others than the first taker a portion of what the will says shall be given to him.

This appears to be an essential part of the validity of the will, penetrating into the domain of administration of the trust created bjr it, to a remote effect. Certainly we do not have in the ease we are discussing the matter of the voluntary and perhaps eager transfer of the trust income by one who seems to have received what he regarded as value for the assignment. But we do have a case where the court of the testator’s domicile steps in and does the assigning for him, against his will, rendering to him nothing which he thinks is of value to him, and over his pleaded objection to its jurisdiction, and so works the assigning for him, asserting its essential power to do so.

It is also true that the court deduces the subtrust from the will, and so far forth may be said to construe the will — for the brief in places seems to include construction with validity and so to broaden the field of inquiry. But there was no need to construe the will as to whom it directs the trust income to be paid; as to that, the will was plain. It was to be paid to Philip Chase. But the court did interfere to divert the income from Philip after he became entitled to it, to a different application. That other application may have been forbidden by the law of Pennsylvania. It was not prohibited by the law where the will was of record and whence the power to make the changed application was derived, as the court held.

It is quite possible, as matter of course, that we do not acutely apprehend the full force of what is meant by “validity,” as that term is used in the following extract from the brief:

“As a matter of fact, both these eases deal exclusively with the question of the validity of the will, and not at all with the' question of the assignment of property subject to a trust created by will. ’ ’

We think we do understand, however, that the Massachusetts court, in the case cited, did “deal” “with the assignment of property subject to a trust created by will, ’ ’ and followed the assignment until the property was put to the use of another. It disturbed, rudely and with violence, the trust, which up to that time was getting along very well, both the trustee and the primary beneficiary — as well as the courts of their domicile, as far as we know — being satisfied with it, and neither of them invoking the authority of the Massachusetts courts. The difference is that the court made the assignment in invitum, and not the one to whom the settlor in the trust had in the first instance given the right to make it. And in so doing the court asserted its jurisdiction as superior to that of one thus made tbe compulsory assignor. Whether the legal effect should be different because in one ease the transfer was forced and in the other was ■voluntary and for value, may be a question. If there is a difference in point of merit, it is to the advantage of the plaintiff, as we think. In either case it is a matter of contribution to the support of family dependents and in both eases at last it was brought to the point of the contribution being forced by the courts. The jurisdiction invoked to do the forcing resided — so the Massachusetts court says — in the domicile of the settlor and the probate of his will clear through to the end of directing for whom the trust income may in a proper ease be expended. The defendant in this case contends “that the validity of this assignment is to be determined by the law of New York” — the domicile of the testator and the probate of her will being in Ohio.

We probably fail to grasp, or at least to appreciate at its appraised value, the distinction, so much insisted on in the brief, that the physical presence of the stocks in New York and the domicile in that state of the assignor and the assignee in the assailed transfer, of themselves render the eases cited by the plaintiff totally inapplicable. In Chase v. Chase, supra, the domicile of all the parties was in a state outside of that which took jurisdiction. No mention is made of where the corpus of the trust fund was or in what it consisted. It was not deemed in any way decisive of what law should govern in the disposition of the case, the court proceeding entirely on other grounds to graft the sub-trust on the first one and then to administer it. The demurrer to the bill did not assign the locus of the fund as in any way testing the jurisdiction; the allegation at that point was that the cestuis — both first and secondary — resided in a foreign state. On the authority of that ease Perry, Trusts, See. 71, lays down the unqualified rule, as follows:

“If a trust is created by the will of a citizen of a particular state, and his will is allowed by the probate court of that state, and a trustee is appointed by the probate court, courts of equity will have jurisdiction over the trust, although both the trustee and the property arc beyond the jurisdiction of the court."

Our inclination is, so far as the discussion thus far has gone, to hold that the undisputed facts of the case are not operative to deprive the Ohio courts of jurisdiction and to measure the rights and liabilities of the parties by the New York law disabling Mr. Lozier is a proper case from making the assignment which evidenced his engagement with his wife, otherwise meritorious and for which he agreed he had received vahie.

If, however, we are mistaken in that conclusion, another consideration is urged upon us and on which we feel we can rely with confidence in coming to a result. The principle is this: If the jurisdiction is claimed for two courts, in one of which the transaction is valid and void in the other, the intent of the parties should govern and to establish that, in the absence of stipulation by them or of circumstances pointing to a controlling implication, they must be deemed to have acted in contemplation of the validity rather than the avoidance of their engagements; in such case the presumption is against an intent to create a barren and inappropriate right.

The proposition, in the main ease relied on here, Pritchard v. Norton, 106 U. S. 124 [27 L. Ed. 104; 1 Sup. Ct. 102], is stated thus:

“A contract is governed by the law with a view to which it is made, because by the consent of the parties that law becomes a part of their agreement, and it is therefore to í>e presumed in the absence of any express declaration or controlling circumstances to the contrary that the parties had in contemplation a law according to which their contract would be upheld rather than one by which it would be defeated.”

In the opinion in that case Mr. Justice Matthews discusses, painstakingly and clearly, the whole question from both points of view — principle and authority.

The rationale of the rule is found in Phillimore, Int. Law, 469, as follows:

“It is also to be remembered that in obligations it .is the will of contracting parties, and not the law which fixes the plaee of fulfillment — whether that place be fixed by express words or by tacit implication — as the place to the jurisdiction of which the contracting parties elected to submit themselves. ® * * As all the foregoing rules rest upon the presumption that the obligor has voluntarily submitted himself to a particular local law, that presumption may .be rebutted either by an express declaration to the contrary, or by the fact that the obligation is illegal by that particular law, though legal by another. The parties can not be presumed to have contemplated a law which would defeat their engagements. ’ ’

We think the same principle has been imposed by the courts of Ohio in the enforcement of contracts supposed to be tainted with usury. In Scott v. Perlee, 39 Ohio St. 63 [48 Am. Rep. 421], it is said:

“Where such a contract, in express terms, provides for a .rate of interest lawful in one but unlawful in the other state, the parties will, be presumed to contract with reference to the laws of the state where the stipulated rate is lawful, and such presumption will prevail until overcome by proof that the stipulation was a shift to impart validity to a contract for a rate of interest in fact usurious.”

In Pritchard v. Norton, supra, further comment is made of the rule as laid down in Phillimore, as follows:

“At all events, it is a circumstance highly persuasive in its character, of the presumed intention of the parties, and entitled to prevail, unless controlled by more' express and positive proofs of a contrary intent. ’ ’

We think it has not been so overcome in this case and that it ought to prevail.

The .result of its prevailing in holding one to his engagement instead of permitting him to break it, after securing its benefit, does not render the rule any less satisfactory in our estimation. We apply it, however, not for that reason, but because it states the law of the case, as we think and hold.

Upon the facts in the record, the law is with the plaintiff.

It results that the learned court who tried the case below was in error in applying to the facts the law of New York instead of Ohio.

For that reason the judgment under review is reversed. As .the material facts in the case .are not disputed; as all parties waived a jury trial in the court below, thereby submitting to the judgment of that court and by consequence to this court which has now overruled that judgment, and as the judgment that should have been rendered there depends for its liquidation to a money amount only upon a computation, we now proceed to render the judgment which should have been rendered there; that the plaintiff recover according to the prayer of her petition and that the cross-petitioning defendant trustee have judgment of exoneration upon his satisfying the judgment for the plaintiff.

An entry to that effect may be prepared.

Leighley and Dunlap, JJ., concur.


author: HOUCK, J.

text:
    INTOXICATING LIQUORS.
    [Wayne (5th) Court of Appeals,
    May, 1918.]
    Powell, Houck and Shields, JJ.
    Lazarus Baysinger v. State of Ohio.
    Providing Beer for Privileged Persons In Territory Made “Dry” Under the Beal Law Is In Violation of Statute.
    The keeping in the basement of a private house in dry territory of kegs of beer, with permission to certain persons to visit said basement and draw and consume the beer so provided, constitutes a furnishing of intoxicating liquor within the prohibition of the statute, and a conviction of the occupant of the house, who ordered the beer and collected the money for its payment from those who visited the place, will not be disturbed by a reviewing court.
    [Syllabus by the court.]
    ERROR.

      A. D. Metz, for plaintiff in error.

      Benton G. May, Pros. Atty., and T. W. Orr, for defendant in error.
   HOUCK, J.

The plaintiff in error was tried and convicted of keeping a place for the unlawful furnishing of intoxicating liquors as a beverage. The same is alleged to have been done in the village of "Rittman, Wayne county, Ohio, and which village at the time was “dry territory,” having been made so by a local option election.

To the judgment of conviction, by the mayor of said village of Rittman, the accused prosecuted error to the common pleas court, and the same being affirmed, error is here prosecuted seeking a reversal of the judgment of said courts.

The record discloses the following undisputed facts:

The village of Rittman is dry territory, by reason of a local option election. On Saturday evening, August 18, 1917, the sheriff of Wayne county, with a search and seizure warrant, visited the home of Baysinger, and in the basement of the home seized four eight-gallon kegs of beer, a beer pump, and some beer glasses and buckets. At said time and place there wei’e eight persons (including the accused) present, either in the room or just on the outside, and some were drinking beer.

In the basement where the beer was found there was nothing else stored except the four kegs of beer, with ice on them, and a long bench with beer glasses on it. One of the kegs had a beer pump in it. That several times a week during the summer of 1917, and prior to August 18, people would go to said basement, singly, and sometimes four or five at a time, and during this time a drayman was seen, on several occasions, unloading beer there, the number of kegs delivered being from one to five at a time, and this was as often as three times a week during the aforesaid period.

The beer, on all these occasions, was purchased by those who visited the basement, each paying his proportionate share of the cost. Baysinger usually collected the money and ordered the beer, and all deliveries were made to him, and drunk by the contributors in the basement of the Baysinger home. The basement door was left open when beer was there, and the contributors were privileged to, and some of them did, visit the place and drink beer on their way home from work, and at other times, when Baysinger was not present.

The question presented to the court is: Under these facts and the law, was the accused properly convicted?

The conviction was had under favor of Sec. 13232 G. C. which reads:

“Whoever, after thirty days from the date of an election held within- a municipal corporation to determine by ballot whether the sale of intoxicating liquors as a beverage should be prohibited therein, a majority of votes at such election having been east in favor of prohibiting sueli sale within such municipality, in any manner directly or indirectly, sells, furnishes, gives away, or otherwise deals in intoxicating liquors as a beverage or keeps or uses a -place, structure or vehicle, either permanent or transient, for such selling’, furnishing or giving away or in which or from which intoxicating liquors are so sold, given away, furnished or otherwise dealt in, shall be fined not less than fifty dollars nor more than two hundred dollars, and for a second offense shall be fined not less than one hundred dollars nor more than five hundred dollars, and for each subsequent offense shall be fined not less than two hundred dollars and imprisoned not less than ten days nor more than sixty days.”

Counsel for plaintiff in error maintains that the conviction was wrongful, and not warranted under the facts and law, because the accused had a legal right to associate himself with others in the ordering of beer, and the mere fact that they drank 1he same on the premises of the accused two or three times a week, during the summer of 1917, and the further fact that it was in his home or private residence, would not constitute, in law, a keeping of a place for the furnishing of intoxicating liquors unlawfully.

This claim might have some force if our legislature had not spoken, and clearly and fully disposed of same by statutory provision.

Section 6099 reads:

“In clubs, societies or other combinations of individuals where intoxicating liquor is kept for use of as a beverage by individual members thereof in territory where the sale, furnishing or giving away of intoxicating liquor as a beverage is prohibited, the keeping of such place shall be held to be the keeping of a place where intoxicating liquors are furnished or given away in violation of the local option laws. ’ ’

Section 6102 reads:

“In a territory in which the sale, furnishing or giving away of intoxicating liquor as a beverage is prohibited, the keeping of intoxicating liquor in a room, building or other place, except in a regular drug store or in a "bona fide private residence, shall be prima facie evidence that such liquor is kept for unlawful sale, furnishing or giving away.”

So far as this case is concerned, the legislature of our state, by the above enactments, has saved the courts much work and labor by clearly defining the elements necessary to constitute the offense of keeping a place for the unlawful furnishing of intoxicating liquors. The language used is not ambiguous, and needs no interpretation, but is plain and explicit.

The accused might not have known of these provisions of our law, or he might have failed to properly interpret same, but it matters not, as a failure to know the law excuseth no one for its violation.

It seems to us that the crux of this ease centers in the proper definition of the word “furnishing,” as found in the statutes hereinbefore referred to, and as thus interpreted, when measured by the conceded facts in this case, how stands the issue as between the state of Ohio and Lazarus Baysinger %

The Supreme Court of this state has said that the supplying of intoxicating liquors to a minor, to be drunk by him, is a furnishing of the liquor to such minor; although it was purchased by another, and supplied by the seller to the minor in pursuance of such purchase.

The facts in this ease abundantly show that while no liquors were sold, and while the proof does not in so many words indicate that any was given away to other than the persons who assembled there from time to time, yet it is clearly proven that Baysinger furnished the place, secured the beer, and made it possible for the men to congregate quite frequently in the basement of his home, and there they drank beer on numerous occasions.

By reason of this, his home — in law — had been transformed into a public resort, where persons were permitted to congregate “in dry territory,” and by so doing attempted to set aside the wishes of the residents of the village of Bittman, who had heretofore by a majority vote at a local option election said, as provided in Sec. 13232 G. C., that, “whoever, within such municipality, in any manner directly or indirectly, sells, furnishes, gives away, or otherwise deals in intoxicating liquors as a beverage, or keeps or uses a place, structure or vehicle, either permanent or transient, for such selling, furnishing or giving away, or in which or from which intoxicating liquors are sold, given away, or furnished or otherwise dealt in, shall be fined, ’ ’ etc. * * #

If we are to be guided by the language thus used in the above legislative enactment, and in doing so give to the word “furnishing” its commonly accepted meaning, we are unable to find other than the courts below in this case.

The word “furnishing” is broad and comprehensive in its scope and meaning, and in so holding we are only carrying out the legislative intent of the lawmakers who enacted the statute in which it is used.

The statutes relating to the violation of local option laws, like all criminal statutes, were passed to be enforced, and the will of the people in voting “territory dry” must be held sacred, and violators thereof must atone to the offended law, if under the facts and a proper application of the law to same, they are found to be such violators.

In our examination of the testimony and evidence, as contained in the bill of exceptions, and a review of the entire record before us, we find no errors of a prejudicial character that would justify a reversal of the judgment of conviction entered in this case.

Judgment affirmed, and case remanded for execution.

Powell and Shields, JJ., concur.


author: GORMAN, J.

text:
    PRINCIPAL AND SURETY.
    [Hamilton (1st) Court of Appeals,
    November 5, 1917.]
    Jones, Gorman and Hamilton, JJ.
    Wyoming (Vil.) v. Citizens Tr. & Grnty. Co. of West Va.
    1. Statutory Provisions Relating to Bonds Given by Depositaries Will Be Read Into Such Bonds.
    A bond securing deposits made by a city or village in a designated depositary is a statutory bond into which the provisions of the statute relating thereto must be read, and the surety will be held to have contracted with reference to such statutory provisions.
    2. Surety Has Responsibility for Increase of Bond When Deposits Are Increased Beyond Amount of Existing Bond.
    The responsibility for providing for an increase in the amount of an indemnity bond, where deposits are made by the municipality in excess of the sum named in the existing bond, is in the first instance upon the depositary, and in case such a situation arises the surety becomes liable for the full face of its bond, and not ninety per cent, thereof.
    3. Liability of Surety Is Equal to Full Face of Depository Bond.
    The amount for which the surety is liable, up to the face of its bond, is the amount with interest shown to remain due the municipality after linuidatiou of the depositary.

      8. G. Roettinger and James E. Robinson, for plaintiff in error.

      Pogue, Ho/fheimer & Pogue, for defendant in error.
   GORMAN, J.

This case is here on error to the judgment of the common pleas court, wherein the judgment below was adverse to the plaintiff in error.

The case was submitted to this court upon an agreed statement of facts to take the place of a bill of exceptions.

From the agreed statement of facts, omitting the immaterial parts, it appears that the village of Wyoming, a municipal corporation in Hamilton county duly organized under the laws of Ohio, designated the Metropolitan Bank & Trust Co. of Cincinnati as its depository, and that after competitive bidding it awarded to this bank the contract to receive on deposit in its bank moneys of the village, said bank being the highest and best bidder for said deposits.

A resolution providing for deposit in this bank was duly passed by the council of the village on or about June 1, 1909. The resolution provided that the treasurer of the village was authorized and instructed to deposit the funds of the village in said bank in the manner provided by law and in accordance with the terms of said bid.

Pursuant to the award the bank, as required by law, executed and delivered to the village of Wyoming its bond with the defendant company as surety thereon. Said bond was renewed on July 5, 1910, for a period of one year upon the same terms and conditions as the original bond; and again said bond was renewed on or about July 1, 1911, for a further term of one year and to continue in force until the close of the banking hours on July 6, 1912.

After the execution of the bond the treasurer of the village in consideration thereof deposited the village funds in said bank commencing on or about July 19, 1909, and from time to time made deposits; and withdrawals were made from time to time to meet the payments ordered by the village council out of the funds.

The amount of this bond was $10,000; and the renewals were for the same amount in each of the two succeeding years. On September 18, after the second renewal of said bond said bank closed its doors and went into the hands of a receiver under the direction of the state bank examiner of the state of Ohio, this being a state bank, and the payment to its depositors including the plaintiff in error was then and there suspended.

At the time of its suspension the plaintiff in error had on deposit as principal the sum of $18,879.11; and there was due on this principal by way of interest the sum of $427.08; making a total amount of principal and interest belonging to the plaintiff in error, in the bank, the sum of $19,306.19. The receiver of said bank from time to time paid dividends to the depositors, including plaintiff in error, and finally upon the winding up of the bank’s affairs there had been paid to the plaintiff in error on account of its claim, by the receiver, dividends aggregating $10,618,40, leaving a balance unpaid on its claim of $9,305.59, with interest.

After tbe receiver of the bank had paid all the dividends that could be paid out of the assets of the bank the defendant in error, the Citizens Trust & Guaranty Co., paid to the village the sum of $4,756.50, claiming that this was the entire amount which it should pay on its obligation under said bond. This money was paid by the defendant in error and received by the plaintiff in error without prejudice to the rights of plaintiff in error to assert this claim against defendant in error for the full amount unpaid by the bank or its • receiver; and without prejudice to the rights'of the defendant in ei’ror to resist the claim of the village of "Wyoming.

The condition of this bond is as follows:

“The condition of the above obligation is such, that whereas, under and by virtue of a certain proposal of the said The Metropolitan Bank & Trust Company, the said bank has been designated as a depository of the money belonging to the incorporated village of Wyoming, and in consideration thereof, the said bank has agreed to pay to said incorporated village of Wyoming upon such deposits the rate of interest agreed upon.
“Now, therefore,' if, during the period beginning on the date of this bond, the said The Metropolitan Bank & Trust Company shall receive, safely keep and pay over all moneys which may come under its custody under and by virtue of the laws of the state of Ohio relating to such depositories, and under and by virtue of the said bank’s contract with the said incorporated village of Wyoming, and shall properly account for and pay over, as required, the interest on such deposits at the rate agreed upon, and shall faithfully perform all the duties imposed by the laws of the state of Ohio upon it as a de--pository of the moneys of said incorporated village of Wyoming, then this obligation shall be null and void; otherwise to remain in full force and virtue.”

There are other provisions in the bond by way of provisos which need not be quoted, as they do not in the opinion of the court affect the question involved in this case.

The limit of the liability of the defendant in error was $10,000, and this it obligated itself to pay to the village of Wyoming provided the Metropolitan Bank & Trust Co. defaulted in its payment of tbe village moneys. In other words, the defendant in error bound itself to the extent of $10,000 to indemnify and hold harmless the village of Wyoming from any loss which it might sustain by reason of having designated said bank as its depository.

If the loss were less than $10,000 then the defendant in error did not obligate itself to pay more than the amount of the loss. If the loss exceeded $10,000, it was obligated to pay only $10,000.

In the court of common pleas, upon the submission of this cause to the court without the intervention of the jury — a jury having been specially waived — a judgment was rendered in favor of the defendant holding in substance that it had paid all that it was required to pay under the bond and in fact had paid in excess of the amount for which it was liable in the sum of $311.47, which sum was claimed by defendant in error in the court below on its cross-petition upon which it sought to recover.

It is argued by defendant in error that this being a statutory bond the provisions of the statutes relating to depositories must be impliedly read into the bond or contract — there being no other contract between the village and the Metropolitan Bank & Trust Co. except the bond involved in this proceeding. We concur most heartily in the claim of counsel for defendant in error that the provisions of the statute relating to bonds required to be given by the depositories, are impliedly read into the contract or bond.

At the time of the last renewal of said bond the legislature had made some amendment to the provisions relating to the depositories of municipal corporations, found in act 102 O. L. 122, being an amendment of Sec. 4295 G. C.

In substance that section provides that—

“Council may provide by ordinance for the deposit of all public moneys coming into the hands of the treasurer in such bank or banks, situated within the county, as offer at competitive bidding the highest rate of interest and give a good and sufficient bond issued by a surety company authorized to do business in the state, or furnish good and sufficient surety, or secure said moneys by a deposit of bonds or other interest bearing’ obligations of the United States, ’ ’ etc.

A description is given in the section of the kinds of securities that may be given to secure the deposit of funds. And the section further provides that—

“there shall not be deposited in any one bank an amount in excess of the paid in capital stock and surplus of such banks, .and not in any event to exceed one million dollars.”

And it further provides—

“that whenever any of the funds of any of the political subdivisions of the state shall be deposited under any of the depository laws of the state, the securities herein mentioned, in addition to such other securities as are prescribed by law, may be accepted to secure such deposits.”

The section further provides—

“said security to be subject to the approval of the proper municipal officers, in a sum not less than ten per cent in excess of the maximum amount at any time to be deposited.”

Now it is claimed by counsel for defendant in error that this language of the statute being impliedly read into the bond, means that the village of "Wyoming would not be permitted under the law to deposit in the Metropolitan Bank & Trust Co. at any time more than $9,091, which would be in round numbers 90 per cent of the face of this bond; and that if the village deposited more than 10 per cent less than the amount of the bond, it, the village, did so at its own risk, or it was obliged to provide for an additional security or bond to be given.

But this statute puts the duty upon the bank which is designated as the depositary of the municipal corporation to give good and sufficient bond. It does not impose the duty upon the council of the municipality or upon the treasurer of the municipality to see that the bond is given. No doubt it would be the duty of the officers of the municipality to see that a sufficient bond was given in order to protect the village from any loss which might occur; but it does not lie in the mouth of the surety.company to say that because the village failed to secure additional sureties or an additional bond, that it is therefore not liable for more than ninety per cent of the face of its bond. The surety contracted to be liable to the village to the extent of $10,000, and if the loss of the village reached $10,000 it would be liable for the full amount of the bond.

In the case under consideration the loss of the village was less than $10,000.' It suffered no loss except that which the bank failed to pay. The fact that it had on deposit more than $19,000 when the bank closed its doors does not establish a loss of $19,000. After the bank had closed its doors the village received on its claim more than $10,000 paid to it by the receiver of the bank, and, manifestly, to the extent that it received payment on its deposit in this bank there was no loss. Its only loss was the amount which the bank failed to pay upon the winding up of its affairs.

¥e do not think it necessary that any authorities be cited in order to establish this plain proposition. The plaintiff in error (plaintiff below), was entitled to recover from the defendant in error, upon the agreed statement of facts the amount which the Metropolitan Bank & Trust Co. failed to pay on account of the sum of moneys on deposit in said bank. This amount, $9,305.59 with interest, less the amount voluntarily paid by defendant in error, $4,756.50, leaves a balance of $4,-642.10 with interest — this being the total amount claimed by plaintiff in error in the action at law.

The court of common pleas having erred in rendering judgment in favor of the defendant in the amount rendered, when it should have rendered judgment for plaintiff in the sum of $4,642.10 with interest, and there being no question of fact involved in the ease but only a question of law, we hold that the judgment of the common pleas court should be reversed and judgment entered in this court in favor of the plaintiff in error for the amount of $4,642.10 with interest, as claimed in the petition.

Judgment accordingly.

Jones and Hamilton, JJ., eoncur.


author: JONES (O. B.), J.

text:
    MUNICIPAL CORPORATIONS.
    [Hamilton (1st) Court of Appeals,
    April 3, 1916.]
    Jones, O. B., Jones, E. H., and Gorman, JJ.

      Matilda Steinbeck v. John Hauck Brew. Co.
    Ordinance Providing Penalties for Failure of Abutting Owner to Remove Snow from Sidewalk Not Foundation for Action Against Abutting Owner for Injury from Icy Sidewalk.
    Averments that the plaintiff fell and was injured on a sidewalk which was covered with ice and had a “steep descent” toward the next street, do not state a cause of action against the owner of the abutting property, notwithstanding the existence of an ordinance imposing a penalty for failure of owner or occupants to remove ice therefrom.

      Gloss & Luebbert and Michael G. Heintz, for plaintiff in error.

      Harmon, Colston, Goldsmith & Hoadly, for defendant in error.

       Motion to certify record overruled, Steinbeck v. Hauck Brew. Co. 61 Bull. 330.

   JONES (O. B.), J.

Plaintiff seeks to recover damages for personal injuries received by her in a fall upon an icy sidewalk. The action is brought against the owner of the lot of land along which the sidewalk extends.

The material allegations of the amended petition under which defendant is sought to be held are as follows:

“That along the north side of said brick building and extending along East Twelfth street is a cement sidewalk, and that said sidewalk slopes eastwardly with a steep descent to said alley to the rear of the premises of the defendant,
% # * #
“That prior to February 8, 1913, the city of Cincinnati by its board of council had duly passed an ordinance of the said city, providing for the removal of ice from the sidewalks by the owner of the building or lot of land adjoining such sidewalk, and that said ordinance was in force and binding on the date aforesaid. That said ordinance is as follows:
“ ‘Whenever the sidewalk, or any part thereof, adjoining any building or lot of land, or any street, shall be incumbered with ice, it shall be the duty of the owner or owners, occupant or occupants, or any person having the care of such building or lot, to cause such sidewalk to be made safe and convenient by removing the ice therefrom, or by covering the same with sand or some other suitable substance, and in case such owner or owners, or other person shall neglect so to do, for the space of two hours during the day time, shall be liable to the penalty named in the following section. ’
“That the defendant company through its agents had been notified by the police authorities of the city of Cincinnati of the condition of said sidewalk, and had been notified to remove the ice therefrom, or to make the said sidewalk safe by covering the same with sand or with some other suitable substance, but that defendant company failed and refused to remove or cover said ice, but permitted said sidewalk to remain in the dangerous condition as aforesaid.
‘ ‘ That said sidewalk by reason of its being constructed with said steep descent and negligently and carelessly allowed by defendant to remain covered with ice and snow for a period of several days, was a dangerous nuisance and menace to persons using the same, and was the direct cause of the injuries inflicted upon this plaintiff as hereinafter set out.”

A demurrer to this amended petition was sustained, and judgment was entered for defendant.

This proceeding in error is brought seeking the reversal of that judgment.

It will be observed that there is no allegation of any structural defect in the sidewalk or that defendant in any way caused or contributed to the bringing of the ice or snow upon it. True, something is said of a steep slope, but it is not alleged' that the construction is in any way improper or out. of conformity with that of the street, or that the defendant was at all responsible for such slope or descent, which is determined by the city.

If the action had been brought against the owner of adjoining property, it would be substantially the same as Chase v. Cleveland, 44 Ohio St. 505 [9 N. E. 225; 58 Am. St. 843], where a demurrer to the petition was sustained. The same question was again considered in Norwalk v. Tuttle, 73 Ohio St. 242 [76 N. E. 617], where it was also held that there was no cause oí action and a demurrer to the petition should have been sustained. There would be no liability to plaintiff here on the part of the city, on whom is cast the duty of keeping the street and sidewalk in repair and free from nuisance (Sec. 3714 G. C.). And as no such duty rests upon the property owner in favor of a passer-by, there is all the more reason why he would not be liable.

It is contended, however, that because of the city ordinance, it became the duty of the property owner either to remove the snow and ice or to cover same with sand, and that when such duty is not performed, a liability would arise in favor of one who might be injured.

The early ease of Van Dyke v. Cincinnati (1 Disn. 532), fully discusses and disposes of this contention. This is a decision of the superior court in special term, but the opinion of Judge Spencer is so clear and convincing that it has been widely cited and approved as an authority.

The ordinance quoted and relied upon by plaintiff, if not identical, is entirely similar to that relied upon in the Van Dyke case, having been continued on the books under the different codifications of ordinances. No question was raised as to the validity of the ordinance.

Counsel for plaintiff undertake to avoid the force of the decision in the Van Dyke ease by suggesting that the council had not legislative authority at that time for the enactment of the ordinance under consideration in the Van Dyke case, while now express authority for the ordinance in its present form is found in See. 3853 G. C.

“The councils of municipal corporations may provide by .ordinance for the construction and repair of necessary sidewalks, curbing, or gutters, or parts thereof, within the limits of the corporation, and may require by imposition of suitable penalties or otherwise, the owners and occupants of abutting lots and lands to keep tbe sidewalks, curbing and gutters in repair, free from snow or any nuisance.”

It might be noticed that, if it is necessary to be technical as to the authority conferred, the word “ice” does not appear in the section; but we do not regard this of importance, as there is no question of the power of council to enact the ordinance in its present form. This ordinance provides a penalty for noncompliance, and does not in any way undertake to fix any further liability upon the property owner. There is no doubt that a compliance with the ordinance can be required by enforcing the penalty provided, but no provision is made or attempted to create a liability for any damages that might possibly be occasioned because of such non-enforcement.

It has been held in Wilhelm v. Defiance, 58 Ohio St. 56 [50 N. E. 18; 65 Am. St. 745], where a judgment had been recovered against the city by reason of a defective sidewalk, that the owner of property can not be required to indemnify the city for damages even though he had been notified by it to repair such sidewalk and had failed to do so. The city had the power to construct the walk and collect the cost from the property owner.

The law is well settled that the abutting owner is only liable where he has by some act of commission created the nuisance which caused the injury. Morris v. Woodburn, 57 Ohio St. 330 [48 N. E. 1097] ; Rochester v. Campbell, 123 N. Y. 405 [20 Am. St. 760].

In 4 Dillon, Municipal Corporations, Sec. 1697, the duty of a city in regard to ice and snow in the streets and on the sidewalks is stated, and numerous eases are cited:

“* * * the mere slipperiness of a sidewalk occasioned by ice or snow not being accumulated so as to constitute an obstruction, is not ordinarily such a defect as will make the city liable for damages occasioned thereby.
“The owner or occupant of the building is not liable, in such cases, to the person injured on the sidewalk in front thereof from natural accumulations of snow or ice.”

Among the cases supporting this doctrine may be cited: Kirby v. Boylston Market Assn. 80 Mass. 240; Fuchs v. Schmidt, 8 Daly (N. Y.) 317; Connolly v. Bursch, 134 N. Y. Supp. 141; Dahlin v. Walsh, 192 Mass. 163 [77 N. E. 830; 6 L. R. A. (N. S.) 615] ; Hartford v. Talcott, 48 Conn. 525 [4 Am. Rep. 189] ; St. Louis v. Con. Mut. L. Ins. Co. 107 Mo. 92 [17 S. W. 637] ; Flynn v. Canton Co. 40 Md. 312; Taylor v. Ky. Co. 45 Mich. 74 [7 N. W. 728; 40 Am. Rep. 457]; Bloom v. Toledo, 25 O. C. C. 235 (2 N. S. 108).

Counsel for plaintiff in error contend, however, that two recent eases in the Supreme Court of Ohio, Variety Iron & Steel Co. v. Poak, 89 Ohio St. 297 [106 N. E. 24], and Schell v. Dubois, 94 Ohio St. 93 [113 N. E. 664], decided February 29, 1916, have in some way changed the rules heretofore announced. In these cases negligence per se was found to exist by the court. In the first case a machine was used with a set screw protruding in such a way as to cause the injury, being directly contrary to the statute. In the last case, the excessive speed at which the auto mobile was driven past the car discharging passengers, in direct violation of the ordinance, was the immediate and proximate cause of the injury. These were, in both eases, acts of commission, where the injury was the direct result of plaintiff’s positive act.

In the instant case defendant, to quote the language of the court in Heeney v. Sprague, 11 R. I. 456, 461 [23 Am. Rep. 502], “has not done anything injurious to others which it was forbidden to do; it has simply left undone something beneficial to others which it was required to do under a penalty in case of default. The thing required was not obligatory upon it at common law. It was a duty, newly created by ordinance, it might have-omitted with entire impunity.”

The case of Griswold v. Camp, 149 Wis. 399 [135 N. W. 754], is almost identical with the instant ease, the ordinance provision being practically the same, and in that case counsel relied upon the doctrine that: “failure to obey a statute designed to conserve human safety, is negligence per se. That is not of universal application. It depends upon the presumed legislative intent. In all cases where the doctrine has been applied there was a manifest purpose to create the liability or make a rule of evidence as to an existing duty. There the ordinance dealt with a situation, where, by statute, the municipality was in duty bound to keep the sidewalks in a reasonably safe condition for public travel, and persons doing work contemplated on premises adjacent to the street, were in duty bound to conduct their operations with ordinary care for the safety of persons lawfully using the walk. The ordinance required the party responsible for the work on adjacent property to aid the city in performing its duty and to do the particular thing as essential to ordinary care on his part. The ordinance did not create any liability; that existed independently of any legislation. All the ordinance did was to regulate the performance of an existing duty. Courts have not gone so far as to construe any such ordinance as that in question as creating a liability such,as the one claimed.”

We find nothing in the Poak or Schell cases that would in any way require or authorize a change in the law in Ohio as to icy sidewalks as heretofore announced.

The petition in this case fails to state a cause of action.

Judgment affirmed.

Jones (E. H.) and Gorman, JJ., concur.


text:
    RAILWAYS.
    [Cuyahoga (8th) Court of Appeals,
    May, 1918.]
    Grant, Leigh ley and Dunlap, JJ.
    Society for Savings (Cleveland) v. Lake Shore & M. S. Ry.
    Market Value of Railway Stock Absorbed Ascertained from Sales.
    Under Secs. 9025 G. C., et seq., relating to consolidation of railway lines, the “market value” of the stock of the company absorbed is properly ascertained by sales of stock made in good faith at any time within two years next preceding the making of the agreement of consolidation, and the value of said stock as so determined will not be set aside by a court on the plea that the true value of the stock is not shown by occasional sporadic sales, but must be determined from consideration of the value of the property owned and its earning power, together with the fact, if such be the case, that more or less of the net income has been turned back into the property instead of being distributed to the stockholders according to the usual custom.
    [Syllabus approved by the court.]

      ERROR.

      M. B. & E. E. Johnson, for plaintiff in error.

      8. H. West, for defendant in error.
   GRANT, J.

In promotion of our own burden of conservancy of time and labor, we- shall Hooverize wbat might otherwise be a tedious recitation of various things.

Having read the 118 pages of briefs commended to us, we assume that counsel are sufficiently informed of their case to render extended recitals here unimportant, and the matter is of no particular interest to any but the parties immediately concerned in the disposition of it.

Obeying also this law of parsimony in another respect, we pass by all discussion of the various questions of procedure technically raised by the record. We agree with counsel that all these are merged in the main point of controversy, presently to be stated, and that with this settled, they too have no workable importance.

Addressing our inquiry then to this controlling consideration, it became the duty of the arbitrators named for the purpose to take testimony and from it to find and award to the plaintiff in error the highest market value of the stock theretofore owned by it in the defendant company at any time within the two years next preceding the consolidation; this duty was enjoined by statute.

The arbitrators accordingly proceeded to hear testimony tending, as they said, to fix and establish such highest market value within the period so limited.

The testimony so taken was confined to sales of the stock, actually made within the two year period. Of such sales of the guaranteed stock within that time there were nine in all, aggregating 205 shares, at prices ranging from $478 (one share only) to $460 per share — the low rate being for 14 shares.

Of the nonguaranteed stock, the sales proved were 57 in number, totalling 1787 shares; for these the highest price obtained was $500 per share and the lowest $461.

That these were genuine and hot simulated or collusive sales, is not controverted, nor is it in dispute that they were all the sales known to have been made within the required time.

From this testimony and no other, the arbitrators found that a prima facie ease of market value was made out, within the meaning of the statute, and called on the plaintiff in error to rebut the conclusion, if it could, by proof tending to discredit the sales actually shown. No such proof was forthcoming.

But it contended that sales alone did not and could not establish a “market value” of the stock, prima facie. It maintained that the sales shown were sporadic and occasional only, and that they could not be relied on in any just sense of the term to fix a “market value.”

As countervailing testimony the plaintiff in error offered and suggested a much broader field of inquiry, involving the property represented by the stock and tending, as it claimed, to establish “a fair buying and selling value, ‘market value’ in a broad sense, of upwards of $1,000 a share.”

It would be difficult, within reasonable limits, to particularize this entire offer to prove, but a fair intimation of what the ultimate range of it was, as well as the reason given why an inquiry based upon sales alone would be inadequate to fix a “market value” with any justice to the offerer, may be gathered from the following statement of its counsel at the hearing:

“In part, we expect to be able to show from the books of the company that the preferred stock of the Lake Shore & Michigan Southern Bailway Company during the two-year period had a fair buying and selling value, ‘market value’ in the broad sense, of upwards of $1,000.00 a share; that these figures are based on the property of the company and on its income, properly computed; that the New York Central & Hudson River Railroad Company owned, during the two-year period, approximately ninety per cent of the stock of the Lake Shore & Michigan Southern Railway Company; that the policy of the New York Central management has been to turn fifty per cent or more of the net earnings of the Lake Shore & Michigan Southern Railway Company back into the betterment of the road; that the distribution of dividends to stockholders, compared with the net earnings, has been away below the usual custom of railroad companies; that the turning back of so much of the net income into the road has had a double effect; in the first place, it has lowered the selling price, in sporadic sales, of the small fraction of the stock which is scattered in the hands of the public, and, in the second place, it has increased the value of the stock; that the result is that the New York Central Eailroad Company wishes to appropriate stock worth upwards of $1,000.00 a share for $500.00 a share; that the fact is that the stock has been so valuable that it has been an investment stock; that the only real purchasers for it have been the New York Central Eailroad Company and William A. Eead & Company — very likely the same thing; that there were so few sales of it as to furnish no criterion of its value; that the very fact that stock worth upwards of $1,000.00 a share was sold in three or four instances for less than $500.00 a share shows in itself that the stock had no market, for the doctrine that market value, in the narrow sense, fixes the limit of recovery in conversion and other cases, is predicated upon the fact that taken by and large the sale price approximates the real value.
“It is thus evident,” the brief goes on to say, “that if we could prove what we offered to prove, not only were there too few sales of any kind of Lake Shore stock to show a ‘market value’ proved by selling price, but these selling prices were so abnormally depressed as to be worthless as a barometer of ‘market value.’ ”

But the arbitrators rejected this view altogether, and held that the extraneous considerations could have no proper place in fixing “market value,” and that such value was to be referred to sales only, in the absence of fraud or collusion in making them and no claim being made that they were other than bona fide. We have thus presented the two theories, in substance. The record under review, notwithstanding the discursive outlook of discussion in the briefs, calls upon us only for the adoption of the one or the other of these points of view.

The bearing of the cited cases upon the narrow real question,. considering the particular service which the statute requires of the arbitrators, is for the most part not very obvious. nor do they afford ns much practical aid in resolving the difficulty.

"We assume of course that the arbitrators are bound by the substantial rules of evidence, as courts are upon all basic and controlling points.

Going a little afield from the ordinary line of legal quotation, we find the term “market value” defined in the New International Encyclopedia, as follows:

“Market Value. The value of an article as established by public sales of such property in a particular locality. At times this value is proved by regular market quotations. It is also proved by persons familiar with the price at which such property sells regularly in the market. If the market price is abnormally enhanced or depressed at the time or place for the delivery of any goods, by wrongful combinations or by an illegal monopoly, other evidence than the market sales may be resorted to for the purpose of showing the fair value of the property in question.”

Here the synonym of market value is the sales price, normally. The case at bar is not within the exception which would let in other evidence.

But a very persuasive — we may say coercive — consideration with us at the present time rests in what the legislature itself has done to help us to a conclusion as to what it meant by “market value” when it put that term in its statute. For if we can once ascertain the legislative intent in using the words, judicial inquiry can go no further with legal propriety, no matter how strongly we may — in a proper case — feel that another meaning should be annexed to its expression.

The statute under which the arbitrators acted was passed in its present form, so far as -the term “market value” is the thing required to be fixed is concerned, more than sixty years ago.

It remained in that form on the books, unchanged in this respect, for more than a generation. In 1890 it was repealed and replaced by a provision which really seems to have been framed to conform it to the line of proof offered by the plaintiff in error to the arbitrators and rejected by them.. It was made to coincide, as we read it, with the exact theory propounded in this case by the offers to prove, in its essential respects and evidenced a clear legislative departure from the line of “market value” to its actual value, unless the two values should happen to be the same, and let down the bars into an unlimited field of inquiry as far as the dissenters might care to explore. Its language as to this material point was as follows:

“A stockholder who refuses to convert his stock into the stock of the consolidated company shall be paid at least the actual value of such stock, to be ascertained, not alone from its market value previous to the making of such agreement for consolidation by the directors, but from a consideration of the earning capacity of the road, in which such stock is held without reference to such proposed consolidation, the condition of said road, betterments, cars and other property, its existing connections, and any other facts tending to increase or diminish the value of the stock, such payment to be made before the consolidation takes effect.”

This, it will be seen, was a veritable letter of marque, a roving commission to privateers, to sail the high seas from Wall street to the “off again, on again, gone again’ ’of Finnegan at the switch shanty.

If such were the statute now, it would be conclusive in its support of the plaintiff’s contention. This replacing enactment seems on its face to be an impracticable and wholly unworkable thing. It undertook to furnish a test of value which may overnight so fluctuate as to shift the estimate by hundreds of thousands of dollars. A thunder storm coming up while the ai’bitra-iors were making up their award, might disastrously affect “the condition of said road,” a fire in the sheds might, in the same time, materially reduce the “betterments, cars and other property;” all “existing connections” would have to be, at the peril of the inquirer, inquired into in their remotest ramifications and to their consequences by possibility. And the “any other facts” provision would inevitably make the inquiry endless and interminable and bring up at last at a place which, as I recollect, is somewnere on the line of this very consolidated road — to wit: Point No Point. But it admirably fulfilled the conditions on which the theory of the offered testimony and. line of inquiry was bottomed.

The actual work-out covered only* a couple of years.

The provision last quoted was repealed by the act of 1892, which restored the thing to be found by the arbitrators to the “market value” of the statute of 1856, pure and simple, untangled from the test of actual value allowably to be established by the considerations in that behalf annexed by the statute as it was amended in 1890. By the exclusion from the law as it was when the arbitration was had, of the tests allowed by the repealed act, as tending to fix actual value, aside from “market value”; by this restoration of the ancient landmark, we think the legislature must have acted advisedly and with some end in view. To our apprehension that purpose was to clear the field of inquiry from the particular tests and standards which were in the act of 1890 but were omitted in the law of 1892. This, in our estimation, fairly repels the idea that these particular tests may be read into the statute after having been taken out of it, and, so interpolated, be pressed into the service of proving what “market value” is. If such was the purpose, then the legislature deliberately threw overboard a plain rule and substituted a doubtful one for it. Such an outcome of legislative scrutiny is not to be presumed.

Our opinion is that the arbitrators, in holding that the sales proven to them, in good faith made, were evidence from which a “market value” of the stock might be established, and in rejecting the enlarged scope of inquiry proposed to them, but followed the plain requirement of the statute and the intent of the legislature in enacting it. We can think of no other conclusion which would satisfy the statute and yet do no perceived violence to a just determination of the duty laid upon them by it.

This conclusion of what we must regard as the last legislative expression of the intent and purpose of the statute, to abandon the theory of the case held by the plaintiff in error here, is not materially at variance with, or shaken by, any of the authorities brought forward in the briefs and arguments at the bar, so far as these are in point at all. On the contrary, so far as they are applicable, they seem to us to fortify and support it.

That this consideration of what the legislature meant in bringing the statute back to its rule of first instance after a trial of the opposite rule, was influential in.shaping the decision of the arbitrators to hold - evidence of actual sales sufficient to establish “market value,” and to reject testimony reaching beyond that, is most likely. And in so basing their finding that they were right, we are equally without doubt. If they were, this consideration settles the whole case for us.

Of course in one hundred and eighteen pages of briefs and two hours of oral argument at the bar, a great deal more than this has been said. But that anything else has been said, really to the. purpose, or need be said, is in our opinion extremely doubtful.

We say this to show why no more particular attention is paid to the many, very many, questions urged upon us, but which are, as we think, all contained, in substance, in what has already been said.

We can think of no more satisfactory way of eliciting the truth as to what was the market value of the stock, than that adopted by the arbitrators. If they had entered the fields of controversy proposed to them by the offers to prove, it would, we think, have been at the risk of obscuring and not clearing a correct vision of their one duty. For example, the statement found on pages 44 and 45 of the brief is as follows:

“To show the court, however, that our claims are not without foundation and that we reasonably believe that if opportunity be given we can clearly prove the stock to be of a fair value —market value in the broad sense — of upwards of one thousand dollars ($1,000.00) a share, we may add that the Wall Street Journal, the financial organ of the railroads and other large interests in New York City, -has said that the stock of The Lake Shore & Michigan Southern Bailway Company was worth one thousand dollars ($1,000) a share.”

It is thought by some uncharitable people that the Wall Street Journal not only “has said,” but is in the habit of saying, a great many things besides its prayers, but surely men charged with a duty of fixing values and whose time is worth something, can not be expected to spend it in listening to that kind of first aid to reach a just and reliable conclusion. It is indeed a question, we think, whether the adoption of the offer would have been effectual either in the “broad sense” ostensibly sought, or in the broad cents really struggled for.

Although there are several assigned grounds of error before us, the foregoing intimations it is believed dispose of the substance of them all.

We find none of them to be of controlling merit towards disturbing the action of the arbitrators or the consequent judgment under review. In our opinion that judgment in each case does substantial justice between the parties to it.

It is, therefore, affirmed.

Leig’hley and Dunlap, JJ., concur.