text:
    AS TO LIABILITY OF STOCKHOLDER WHOSE SUBSCRIPTION WAS SECURED BY FRAUD.
    Circuit Court of Cuyahoga County.
    Matilda A. Gill v. The Cleveland Printing & Publishing Company et al, and Thirteen Other Cases.

    Decided, June 3, 1907.

      Corporations — Stock Subscriptions Secured by Fraud — Stockholders Liability — Novation—Liquidating Trustees May Not Acquire Title to Stock.

    1. Where a note evidencing a debt upon which stockholders would be . liable, was transferred after the change in the law by which stockholders liability was abolished, and was subsequently renewed by and in the name of the transferee, there was such a novation that the original debt and its incidents were extinguished.
    2. When one is induced through fraudulent representations to subscribe for stock in a corporation, upon the insolvency of the corporation he will be liable as a stockholder so far as creditors of the corporation who became such subsequent to the date of his subscription are concerned, but as to other stockholders, he himself is a creditor.
    3. Liquidating trustees of an insolvent corporation have no authority to acquire the legal title to stock which has been pledged with the insolvent corporation to secure a loan and when such stock is transferred to them, the corporation which they are liquidating does not become liable as a stockholder, nor for unpaid subscriptions on the stock transferred.

      A. N. Thompson, for plaintiff:.

      A. T. Brewer, W. W. Elliott, Calhoun & Guenther, A. B. Thompson, Hills cO Van Herveer, Lau'bscher <& Eees, Hémele ■(& Hopkins, M. L. Thompson, C. E. Fauver and C. A. Judson, contra.

       Affirmed without opinion, Union National Bank v. Gill et al, 80 Ohio State, 742, with a modification permitting all creditors of the corporation to participate in the fund arising from unpaid stock subscriptions.

   Henry, J.; Marvin, J., and Winch, J.,

concur.

This is an appeal of a stockholder’s liability ease, and, as that subject is now practically obsolete, we announce our conclusions without any extended opinion.

The first question concerns the Union National Bank’s claim, and is, in brief, whether the secondary liability of stockholders meanwhile abolished, continues to attach to a debt, the note evidencing which is transferred after the change in the law and subsequently renewed by and in the name of the transferee. We think this is such a novation, as extinguishes the original debt and its incidents. Section 3175j, Revised Statutes of Ohio; Cason v. Wallace, 4 Bush. (Ky.), 388; on rehearing former judgment adhered'to, no-report, 81 O. S., 515; Battle v. Coit et al, 26 N. Y., 404.

The second question involves the right after adjudication of the corporation’s insolvency to rescind subscription to its stock theretofore fraudulently procured by such corporation.

We adhere to a former decision of this court that no such rescission can be made to the prejudice of the corporation’s creditors. We think, however, that the rule does not apply as between the rescinding subscriber and other stockholders of the corporation. ITence creditors of stockholders whose subscriptions were procured by fraud, can not resort to either primary or secondary liability unless and until the liability of all other stockholders is exhausted.

The defrauded stockholders will, moreover, be treated as creditors but not to the prejudice of any other creditor of the insolvent corporation. The defrauded stockholders included all whom the referee found to have been defrauded, excepting Brockett, who became a director in September, 1903, and continued to act in that capacity until the corporation was adjudged insolvent, more than a year afterwards. He is- therefore, presumed to have acquired knowledge of the corporation’s insolvent condition long before he made use of that knowledge as the basis for rescinding his subscription.

His laches thus prevents his effecting such rescission. Parmalee v. Adolph, 23 O. S., 10.

We think Mason v. Moore, 73 O. S., 275, does not conflict .with the imputation of laches to Brockett.

The third question concerns the State Savings & Loan Company, whose alleged ownership, of stock in the insolvent corporation accrued while it was being voluntarily liquidated by trustees appointed under the Ohio statute. These trustees had no authority in law to acquire stock of other corporations except, if at all, in necessary aid of such liquidation. The trust had nothing to gain and much to lose by the acquisition of tbe general title to stock, of which the liquidating corporation was theretofore the mere pledgee. And all the world is conclusively presumed to have known this limitation of the liquidating trustee’s authority. Nor could their authority be enlarged by estoppel. We hold, therefore, that the State Savings & Loan Company is not liable as a stockholder herein, either by way of unpaid subscription or secondary liability.

The fourth question involves the construction of the action taken at the stockholders meeting of February 10, 1903, and on this point we are content with and follow the decision of the court of common pleas, modifying the report of the referee.

The fifth question involves the right of set-off against J. A. Starral. lie acquired, by assignment, a past due note of the insolvent corporation, payable to W. M. Day and F. J. Starral jointly. Both payees were then indebted to the maker of the note. Day’s debt was- overdue; Starral’s was not yet due. Day was .then insolvent and F. J. Starral either was then or soon after became insolvent.

Although the authorities are not harmonious we think the right of equitable set-off as against Day’s interest in the note existed at that time, and if so, it extends- to that interest after Day’s assignment to J. A. Starral. The'assignment of the note was the joint act of Day and of F. J. Starral, and though the evidence fails to show strictly that the latter’s insolvency had at that time actually accrued, he was clearly in failing circumstances, which, in view of his relation to the insolvent company, at least forecasted the impending event.

Under all the circumstances of the ease we think it would be inequitable to hold his interest in the note invulnerable to set-off. It follows, that although the referee’s findings of fact are, in these respects, incorrect, his conclusion of law is applicable to the facts as they actually existed;

In all respects except as we have otherwise indicated the decree here will follow the decree below. As to the matter of costs-we do not feel authorized to alter the discretionary allowance made by the court of common pleas to its referee.


source: Caselaw Access Project

author: ITenry, J.; Marvin, J., and Winch, J.,

license: Public Domain

text:
    SALE OF OUTPUT OF COAL HELD UNENFORCEABLE.
    Circuit Court of Cuyahoga County.
    The Independent Coal Company v. C. N. Quirk et al.
    Decided, June 11, 1907.

      Contracts — Must he Mutuality.

    When one agrees to purchase the entire output oí another’s plant and pay for it at a certain price, but there is no agreement on the part of the seller to deliver liis entire output, upon a suit for the price of goods delivered under this .contract; Held: That defendant has no counter-claim for damages by reason of plaintiff’s failure to send him his entire output as there was no enforceable contract.

      Kerruish <6 Kerruish, for plaintiff in error.

      Hamilton ,<fi Smith, contra.
   ITenry, J.; Marvin, J., and Winch, J.,

concur.

The defendant in error recovered a judgment against the plaintiff in error for coal sold and delivered under the following contract:

“C. N. Quirk, Pres., P. P. Walthour, Yiee-Pres. and Gen’l Mgr., TI. F. Thrasher, See. and Treas.
“Northern Ohio Coal and Coke Supply Company. “Superior Gas and Steam Coal a Specialty.
‘ ‘ Reference. General Office.
“First National Bank.
‘ ‘ Ci-iardon, Ohio, Aug. 9th, 190r. -
“Contract for Coal.
“Agreement between the Independent Coal Company of Cleveland, Ohio, by P. P. Quail, its manager" party of the first part and Northern Ohio Coal and Coke Company, by H. J. Thrasher, Secretary, party of the second part; Witnesseth: — Said party of the first part agrees to take all surplus coal of said party of the second part in the amount of all that said party can ship outside of local trade.
“The price of these deliveries is to be 97% cents, per ton f.o. b. mine until September 1st, 1902, and $1.00 per ton f.o.b. mine from September 1st, 1902, until January 1st, 1903. The grade of coal to be run of mine from the Chicera mine of the Chicera Coal and Coke Company of Chicera, Penn. If rate of freight changes higher the Independent Coal Company have right to cancel this contract.
“(Signed) The Independent Coal Company,
“By P. P. Quail,
“Manager.
“Northern Ohio Coal & Coke Supply Co., ‘ ‘ By H. J. Thrasher,
“Secretary <& Treasurer.”

The plaintiff in error was defendant below and interposed a counter-claim upon the alleged failure of the defendants in error to carry out their part of the contract. Its answer alleges that when the price of coal went up, the plaintiff below failed and refused to deliver all of its surplus coal not required for the local trade, by reason of which plaintiff in error was compelled to and did buy certain large amounts of coal needed by it, and to pay a price in excess of that named in the contract. It, therefore, asks damages for the difference.

This case has been here before with the parties standing in the same relation as they stand now. At that time we reversed the judgment of the court below for misconduct of the jury. Our attention was not then challenged to the fact that under the pleadings and written contract there was no question for the jury to decide. ITad our attention been so challenged we should have been obliged to say this contract is entirely one sided and does not require the defendants in error to deliver any coal whatever. Compare Herrick v. Wardwell et al, 58 O. S., 294. Its effect is to bind the plaintiff in error to pay for any coal that may have been delivered to and accepted by it in pursuance of this contract. This result was reached by the court below, though not upon the same ground.

The judgment is affirmed.


author: PIenry, J.; Marvin, J., and Winch, J.,

text:
    SUFFICIENCY OF THE ALLEGATION THAT THE INSURED WAS IN GOOD STANDING.
    Circuit Court of Cuyahoga County.
    Order of Americus v. Charlotte McDowell.
    Decided, June 11, 1907.

      Pleading — Benefit Societies — Stating Oaiise of Action — Impeachment of Witness.

    1. Where a petition attaches as an exhibit the certificate sued upon, it is not necessary to set forth the charter of the association which issued the certificate, its constitution and by-laws, or the application for membership or medical examination of the insured, and an allegation that the insured was a member in good standing makes unnecessary any averment that he had conformed to all the , rules and regulations of the society.
    2. It is not necessary that the questions asked of an impeaching witness be in the exact words of the questions asked the witness sought to be impeached, if the substance of the inquiry is in each ease the same.

      F. C. Scott, for plaintiff in error.

      Smith, Taft ,<h Arter, contra.
   PIenry, J.; Marvin, J., and Winch, J.,

concur.

This proceeding in error is prosecuted to reverse a verdict and judgment recovered by Charlotte McDowell, upon a death benefit certificate issued to her husband by the plaintiff in error. So many errors in this voluminous record are here alleged that we can only give our conclusions without discussion. The petition below alleges that the Order of Americus is a fraternal beneficiary -association, incorporated under the laws of the state of Pennsylvania, and licensed to do business in Ohio; the answer admits that it is a fraternal beneficial association, and makes no answer to the allegations of its corporate capacity except such as is embraced within the general denial with which it concludes. This statement in the pleadings presents no issue upon the question of corporate capacity.

It is further alleged that the petition states no cause of action, for the reason that although it attaches as an exhibit the certificate sued on and makes the same a part of the petition, it fails to set forth the charter, articles of association, constitution and laws, application for membership and medical examination, which are all made a part of death benefit contracts of such organizations by 97 Ohio Laws, 421, Section A. This provision of law may well be applicable without rendering the petition demurrable. It states substantially the effect of the contract, to-wit: that the husband of the defendant in error was insured by the plaintiff in error, in her behalf.

It is also claimed that the petition is defective in that it fails to allege that Evergreen Council No. 78, located at Cleveland, Ohio, and of which the decedent was a member, had any connection with the Order of Americus. We think, however, that the certificate attached to and made a part of the petition, supplied this defect.

It is further urged that there is no averment in the petition that the decedent, John IT. McDowell, performed his part of the contract; to the allegation that the defendant paid his dues and assessments should have been added, it is urged, that he had conformed with all the rules and regulations of the order-. The petition, however, alleges that he was a member in good standing in the order; this, we think, sufficiently meets the objections made thereto.

The same is true of the lack of averment of any consideration rendered by the decedent in the making of the contract.

It is further urged that the evidence was not confined to the averments of the petition in that the book of laws of the Order of Americus was received in evidence. We think it was perfectly proper for the plaintiff to show the laws in order to show that her husband was a member in good standing, and to show the terms of the insurance.

Complaint is further made that the plaintiff’s evidence was .insufficient to make a ease for the jury, in that the articles of association of the Order of Americus were made a part of the contract of insurance by statute, and though shown to be in existence, were not offered in evidence. We do not think that this was an essential item of evidence in view of the recitals in the certificate on which plaintiff sues.

No evidence, it is contended, was produced of the payment of any dues or assessments by the decedent, nor that the fee of the medical examiner was ever paid, as provided for by Section 34 of the book of laws, nor that- McDowell became a member of the Order of Americus, in accordance with the rules of said society, nor that he ever accepted the certificate or made any contract whatever.

These were all matters of fact, as to each of which we find the bill of exceptions does disclose evidence. Another error urged is in the admission of large parts of the testimony of Philip J. Mooney, who was called by the plaintiff as a witness, to impeach one of the witnesses produced by defendant below regarding statements in conversation between them. No proper foundation, it is claimed, was laid for such questions as the witness was called upon to answer. Our examination of the record does not sustain this claim. It is true that the questions asked by plaintiff below of her witnesses in rebuttal were not always in the identical words used in cross-examining plaintiff in error’s witness wham she sought to impeach, but the substance of the inquiry in each case was the same.

The letter of Mrs. McDowell to the Order of Americus dated June 2, 1904, was admissable in evidence and ought not to have been rejected, but we can not see from a perusal thereof how the plaintiff in error can possibly have been prejudiced by its exclusion. The questions asked Mr. Fouts, in 'regard to the action of the subordinate lodge as to the payment of Mrs. McDowell’s claim; the testimony in regard to the sending of -flowers to the funeral — by members of the lodge and their own attendance thereat were all incompetent and should have been excluded, but in view of the charge of the court with respect to these items of evidence, and especially in view of the jury’s answers to interrogatories, we see no prejudice to the plaintiff in error in ■the admission of this testimony.

Mr. Fout’s description of the roll book and general characterization of its contents did not tend to contradict the document itself, but merely to identify it, and was not erroneously admitted.

The cross-examination by the plaintiff below of her own witness, Frank P. Fouts, is cbmplained of, but it lay entirely within the discretion of the court. It was improper to permit Mrs. McDowell to testify that she learned after paying the $5 that the person to whom she paid it was an officer of the order, but no exception was taken at this point; the preliminary questions to which exception was reserved, not being prejudicial. We pass over, without mention, many other objections to the introduction and exclusion of testimony.

Divers objections are presented to the requests to charge made by plaintiff below and given as requested. We pause only upon the words “clear and satisfactory” in request No. 11 and to the repetition of the same phraseology in the general charge, as follows :

“If payment were essential under the contract proof of nonpayment must be clear and satisfactory.”

No question was raised as to the fact of payment by Mrs. McDowell to one Cruse at the time the certificate was by him delivered to her in her husband’s absence. The sole question in this action was whether Cruse was an authorized representative of the Order of Americus. The testimony clearly and satisfactorily shows that he did represent the order in some capacity and that he was held out by the local lodge as having authority to deliver certificates and collect payments, as the jury specially found. Under these circumstances we do not think that the jury could have been misled by the expression ‘ ‘ clear and satisfactory” instead of “preponderating.”

The court’s charge to the jury with respect to' defendant’s second defense undertook to detail in substance the facts relied on, to show that McDowell died while in the violation of law, and we think the statement so made was substantially correct. The allegation of error in this behalf, is, we think, not well taken.

In weighing the evidence with regard to this defense, it is altogether possible that our judgment would disagree with that of the jury below, but we do not find that their conclusions are so palpably unsupported by the evidence as to justify us in setting it aside.

The newly-discovered evidence upon which the motion for a new trial was in part founded is not of such a nature, being merely cumulative, as to require that relief. We find no error either in this respect or in granting leave to plaintiff below .to file an amended petition after verdict, to conform with the proof, as no such pleading has in fact been filed.

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


author: Henry, J.; Marvin, J., and Winch, J.,

text:
    AS TO THE DUTY OF EMPLOYER. TO INSPECT ELEVATOR..
    Circuit Court of Cuyahoga County.
    The Hollenden Hotel Company v. Joseph Sandrowitz, Administrator.

    Decided, June 11, 1907.

      Negligence — Master and Servant — Failure to Inspect Elevators Not Per Se Negligence — Duty of Servant to Examine.

    1. Failure of an employer to inspect an elevator so as to ascertain its condition and safety is not per se a ground of recovery.
    2. The duty of a servant to use ordinary care for his own safety, requires of him more than a passing glance to discover whether or not the appliance he is using is defective.

      Kline, Tolies & Goff and Section & Paine, for plaintiff in error.

      E. P. Walther, E. C. Schwan and C. N. Sheldon, contra.

       Affirmed without opinion, Sandrowitz v. Hollenden Hotel Co., 80 Ohio State, 739.

   Henry, J.; Marvin, J., and Winch, J.,

concur.

David Katz, a scullion in the employ of the Hollenden Hotel Company was killed on the morning of May 9, 1905, in an elevator used by tbe hotel company’s employes. The verdict and judgment recovered by the administrator oí his estate ag’ainst the hotel company, for wrongfully causing his death, are here sought to be reversed.

Two employes claim to have witnessed the accident. Charles Hughes, a colored man. and Sam Davidovitch, a Hungarian fellow countryman of Katz. • Their versions of the accident contradict each other. Hughes says that he and Katz were on the same floor of the hotel in front of the elevator which had been left slowly moving upward by another employe who stepped out of it just before Katz tried to get aboard it. As the platform of the elevator ascended above the level of the floor Katz sought to clamber upon it, but was so slow in his movements that although he had plenty of time, he was caught between the floor of the car and the top of the doorway leading into the shaft. There is no dispute but that when extricated he was firmly wedged in between the platform of the elevator and the wall of the shaft above the said doorway; his body from the hips downward was below the elevator and upward was in the elevator. lie was so crushed at the hips that he shortly died.

Davidovitch claims to have been standing upon an upper floor looking down the shaft at the time of the accident. He testifies that he saw Katz get into the elevator and start it up; that while ascending the elevator shook, and although he tried to stop it, the floor tipped to such an extent that Katz was spilled off the edge and caught in the manner before described.

Davidovitch appears to have made no disclosure of what he saw to his fellow-employes, his employer, the coroner or anyone else until this lawsuit brought it out.

As between Hughes and Davidovitch, the former seems to us to be more credible, but, recognizing that the jury is the tribunal established and appointed by law to determine controverted questions of fact, we can not substitute our judgment in place of the jury’s verdict upon this question.

The defects relied' on appear to have been certain alleged faults in the construction or maintenance of the elevator’s mechanism, which caused the platform to shake and tip, and to prevent the ear from being readily stopped on such occasions. Many defects or faults are alleged in the petition, as for example: that the space between the car and the shaft was too great, and the play between the guides attached to the elevator and the posts up and down which the guides ran was too much. The evidence is far from clear as to just how the tipping of the elevator or the diffierdty of stopping it, would result from any of these alleged defects. There is, however, considerable testimony to the effect that these difficulties with the operation of the elevator had in fact been encountered from time to time, and that Katz’s superior had promised him that it should be repaired, and subsequently assured him, after certain repairs had been made, that the elevator was all right and might be used again.

We are not prepared to say from an examination of the evidence that the jury were not authorized to infer the actual existence of these difficulties and their recurrence on the occasion of this accident. If they existed, it is manifest that they resulted from some defect or fault in the construction or maintenance of the elevator, embraced within the comprehensive allegations of the petition in that behalf.

It is complained, however, that much of the evidence of similar occurrences, prior to this accident,. was rendered irrelevant by reason of the fact that they happened, if at all, when the elevator was in a different location in the building from which it was meanwhile removed, and substantially rebuilt. It is also complained that some of the occurrences testified to were so remote in point of time from the accident under consideration, that they could not properly be proved. It is therefore alleged that the court erred in overruling objections to and motions for excluding, these items of evidence.

In making these rulings the learned judge apparently did not have the' means of deciding positively just when and where these previous similar occurrences had taken place, and in his rulings and charges upon this subject we fail to find any reversible error,

It is true that the evidence in this ease was permitted to have a wide scope and we think it might well have been much simplified by admitting only such of the evidence as affirmatively appeared to be competent when offered under the strict application of the salutary rule of Brewing Co. v. Bauer, 50 Ohio State, 560. Section 2 of the syllabus reads:

“In an action by an employe against his employer, for damages resulting from an injury received in operating á machine, caused by its defective construction, the defect being charged to the negligence of the employer, it is competent to prove that, on a former occasion, while it was being operated by another, the machine .worked in a manner similar to that in which it worked when the plaintiff was injured. But such evidence is only competent to prove the defective character of the machine and the employer’s knowledge of the fact; it is not competent to prove actionable negligence on the part of the employer at the time the plaintiff was injured and the jury should be so instructed at the time it is received.”

1

On the other hand the court might with propriety have so exercised its discretion as to admit, instead of exclude, the similar though not identical section of side post up and down which the elevator guides ran.

We do not, however, find reversible error in respect to any of the matters thus far discussed.

Complaint is made, however, of the admission of evidence that subsequent to the occurrence of the accident to Katz notices were posted on the elevator forbidding its use by employes, and that prior to that no such notices were posted up. This line of testimony, should, of course, have been excluded. We are not clear, however, that any prejudice arose in this ease from error in admitting this evidence, and we do not revérse upon that ground.

More serious questions are met with regard to the giving of plaintiff’s requests to charge, numbers 10 and 16. Although there is no allegation in the petition of any failure of the hotel company tó inspect its elevator, request No. 10 was given as follows :

"It was the duty of the defendant to exercise ordinary care to see that said elevator was reasonably safe, and it was the duty qí defendant in the exercise of ordinary care to inspect said elevator so as to ascertain its condition and safety; and its failure to do so would be negligence.”

The rule which counsel evidently had in mind while preferring this request was, that, there being a duty to inspect, want of knowledge of a continuing defective condition of the elevator would not suffice to excuse the hotel company from responsibility for such defects, if any, as in fact existed; but to say that a failure to inspect was negligence might well mislead the jury to infer that such failure would, of itself, afford ground for recovery in this case.

Request No. 16 is given as follows:

"David Katz would have the right to assume that the elevator •in which he was riding was reasonably safe in the absence of any knowledge of any defects in said elevator on his part. He would be bound in the exercise of ordinary care to look out for his own safety, but he would not be bound to search for defects; and if the defects were such that he could not discover the same by a passing glance — if you find that there were defects, from the evidence — it would not be negligence on his part if he did not discover the same, and he would not be deemed to have assumed the risk of being injured by the same. ’ ’

This is clearly not the law; an employe is indeed bound to exercise ordinary care to look out for his own safety, but it can not be said as a matter of law, on the facts here presented, that this duty is discharged when he has sought by a passing glance to discover defects that menace him. For error, therefore, in charging the jury as requested by plaintiff below, in requests Nos. 10 and 16, judgment of the court of common pleas .is reversed, and the cause remanded for a new trial.


author: Henry, J.; Winch, J., and Giefen, J.,

text:
    CONDITIONAL AND FINAL ORDERS OF REVIVOR.
    Circuit Court of Summit County.
    H. W. Thompson v. Clement Schnader et al.
    Decided, April 30, 1907.

      Judgments — When Dormant — Revivor, Date oí — Homestead and Exemptions — Who May Demand Exemption.

    1. Where a conditional order of revivor is made, hut the language of the court in making it is clearly prospective as regards the establishment and effectiveness of the revivor, the revivor will date from the final order and not from the conditional order.
    2. Where a motion for revivor is filed during one term of court and the final order granting revivor is made during the succeeding term, the lien of the revived judgment will date from the first day of the second term.
    3. Judgments do not become dormant until five years from the date they are rendered.
    4. The right to claim homestead exemption is a personal matter and where a judgment lien has attached to a co-tenant’s interest in a piece of property which is afterward sold upon partition proceedings, the purchaser can not, as against the judgment lienholder, claim the exemption which the co-tenant might have asserted.

      L. S. Pardee, for plaintiff.

      Pelmly c6 Castle, C. T. Grant and J. M. Paulsen, contra.
   Henry, J.; Winch, J., and Giefen, J.,

concur.

This is an action to enforce tbe collection of a cognovit judgment recovered by plaintiff against defendant, October 8th, 1903, for $202.90, and $7.81 costs. Execution was immediately issued and a levy made on the real estate described in the petition, but the sheriff’s return shows that the property remained unsold because of prior liens. The real estate in question consisted of defendant’s undivided interest which he had inherited in his father’s farm, and the prior liens aforesaid consisted of his widowed mother’s dower interest and such claims against the unsettled estate of his father as might require the sale of the realty to satisfy them. The defendant did not at the time know of the rendition of the cognovit judgment, nor of the issuance and levy of execution thereon, and of course he made no demand for his exemptions.

The judgment at length became dormant, and thereafter, by motion filed in the original ease, the plaintiff sought a revivor thereof. A conditional order was allowed April fi, 1900, but notice thereof was not served on the defendant, and an alias order was therefore issued May 11, 1900, notice of which was duly served. The final order of revivor was made July 23, 1900. No execution was thereafter issued on this revived judgment until July 10, 1905, more than five years after the conditional order of revivor was entered, but less than five years after the final order was made. The execution then issued was returned unsatisfied. Meanwhile a partition suit commenced by another joint heir of the real estate in question had gone to judgment and said property was sold July 1,1905, to one Ripley, one of the defendants herein. The proceeds were paid and divided, the defendant, Schnader, receiving his full share, amounting to about $500. The receipt of this payment was the first actual knowledge that he had of the judgment and sale in partition. The plaintiff had not been made a party to this partition suit, and he now claim that the partition sale did not affect his rights, which of course is true.

The defendants, however, claim, first, that plaintiff’s judgment had again become dormant by the lapse of five years between the revivor in 1900 and the execution in 1905; second that the judgment defendant, having been, ever since 1893 at least, a married man, living with his wife in premises not the property of either of them, was, during all the time between 1902 and the said partition sale in 1905, entitled in lieu of homestead to his entire interest in said real estate, the same being worth not more than $500.

It is contended on behalf of the plaintiff, first, that the revivor became effective when the final order was made, and not when the conditional orders, or either of them, were entered, nor yet on the first day of either of the terms of court at which said revivor proceedings were had, and that the execution in 1905 was therefore issued before the five years had elapsed. Second, that the defendant, Schnader, having made no demand or selection of his alleged exemption acquired no right to hold this particular property exempt; that in any event he voluntarily relinquished his right when he permitted the property to be sold, and received’his share of the proceeds; that his right to exemption in lieu of homestead is in any case fully satisfied by the fact that he then had and still has an equitable interest of at least $500 in real estate in Cleveland to which his wife holds the legal title; and finally that Ripley, the purchaser at partition sale, having bought subject to the lien of plaintiff’s judgment, can not be subrogated to or to otherwise assert Schnader’s mere personal right to claim exemption therefrom in lieu of homestead. :

As to the time when the revivor became effective, Section 5367, Revised Statutes, authorizes a procedure in the same manner as provided for reviving actions before judgment, i. e., by Sections 5150 et seq. Where the revivor is on motion it would seem that, at least where personal service of the conditional order is had as in this case, the revivor may be construed to date from the time of making that order, subject, however, to its being abrogated if cause is shown why the judgment shall not stand revived. The conditional orders and writs were, however, in this instance modeled more nearly upon the phraseology of Section 5153, providing for service by publication, and the language of the court therein is so clearly prospective as regards the establishment and effectiveness of the revivor, that we are constrained to hold that no revivor was adjudged by the court, in this ease, prior to the final order therefor.

It is said, therefore, that as the lien of a judgment not rendered by confession, nor in an action commenced at the same term, dates from the first day of the term under Section 5375, Revised Statutes, so here, the motion for revivor having been filed in one term and the final order reviving the judgment being tendered at the ensuing term, the lien, as thus renewed, should date from the beginning of the latter term and not from the day in term when the order was made. It is doubtful whether the analogy thus invoked could in any event be reconciled with the language of Section 5375, Revised Statutes. However that may be, Section 5380 distinctly provides that a judgment does not become dormant through failure to sue out execution until "five years from the date of judgment. ’ ’ This means five years from the day in’ term when it is rendered. We conclude therefore that this judgment was not dormant at the time of the partition sale.

As to the claim of exemption, it should be noted, first, that pending’ the proceedings for revivor the attorney for the judgment debtor told the opposing attorney that his client, Sehnader, claimed his exemption in the land in question, and that a revivor would be useless, and plaintiff apparently acquiesced in this view until after the partition sale. As a matter of fact, however, Sehnader, when that representation was made, was not entitled to any exemption in lieu of homestead, for he and his wife were then, and for two years thereafter, living in a homestead owned by her in Cleveland. But at the time of the partition sale, neither had a homestead, and Sehnader owned no property except what is now claimed to have been exempt. He made no demand of exemption at the time of the partition sale, nor was any necessary, for the sale was not being made to satisfy any judgment debt of his. Nor did he waive his exemption. The sale was made neither by him nor at his instance, but by law, nor was he called upon to protest against the taking of his exempt property, for he received its lawful equivalent-without diminution. He, , however, is not now asserting and has no longer any interest to assert his exemption in this property. But since it was a personal privilege of his which he might have asserted, or not, as he saw fit, which he never did assert, after it accrued or when it was competent for him to assert it, and which he certainly could not alienate or delegate, it is impossible to hold that the inchoate personal right of exemption, when it accrued, not only superseded the judgment lien that had already attached, but survived the alienation of the property to which that right pertained.

The facts in this case are thus to be distinguished, from those of Genell v. Hirons, 70 O. S., 309, 324, and plaintiff may take a decree.


text:
    PARTITION OF LANDS HELD BY A DISSOLVED PARTNERSHIP.
    Circuit Court of Lake County.
    Frank C. Moody v. Albert E. Powers, Trustee.
    Decided, September 30, 1907.

      Pcvrtnership — Partition of Partnership Lands.

    Where all the partners ask for the termination of a partnership and a winding up of its business, the court will treat the residuum of real estate, after paying all partnership debts, as held by the partners in co-tenancy and decree a partition.
   Henry, J. (sitting in place of Burrows, J.); Laubie, J., and Cook, J.,

concur.

In 1887 D. Powers & Sons, Henry L. Lamb and Everett Case, of Lansingburg, N. Y., and Ralph II. Paige, of this county, entered into a partnership agreement "to buy, develop and sell certain lands,” near the mouth of the Grand river, to which said Paige and one Elbert E. Powers, of said firm of D. Powers & Sons, were to take title as trustees. As such, Paige undertook to attend to the purchase, care and sale of such lands as might be agreed upon by the parties from time to time; and Powers, with the other parties, were to give such assistance as might be required.

D. Powers & Sons agreed to finance the undertaking. They had a half interest; Paige a third interest, and Lamb and Case each a twelfth.

In 1894 Paige having failed, the plaintiff herein, with the consent of the other partners, took his place in the co-partnership, "in all respects” and assumed all obligations to D. Powers & Sons that had accrued against Paige’s interest in the enterprise, amounting, as agreed among the parties, to $16,965.23, payable in installments beginning1 April 1, 1895, and ending April 1, 1900, with interest.

The new agreement incorporated all the provisions of the old one, except as expressly modified, and provided, “that said lands, as well as any other lands purchased by said parties under said original memorandum of agreement, shall be held, managed and controlled by Albert E. Powers, sole trustee for all the parties interested.” It further provided for the application of proceeds, “upon the sale of any of said lands by said trustee.”

In 1903, Powers, as such trustee, sold a large part of the partnership lands to the Lake Erie, Alliance & Wheeling Coal Company, controlled and owned by the defendant, the Lake Shore & Michigan ■ Southern Railway Company, and it is this sale which the plaintiff here seeks to impeach for want of power to make the same without his concurrence and for gross inadequacy of the price paid. ’ An accounting is also sought and various charges sought to be imposed by the trustee upon the trust are resisted and complained of. The case comes into this court on appeal from the judgment of the court of common pleas.

The power to hold, manage and control expressly conferred upon the trustee, is of itself, under the strict construction which must be given in such cases, insufficient under the authorities, to authorize a trustee to make sales. Blandin v. Mayer, 58 Texas, 422; Watson v. Cleveland, 21 Conn., 542; Ure v. Ure, 185 Ill., 216; Gray v. Parke, 162 Mass., 584.

Construing, however, the whole agreement and the references therein contained to sales of lands by the trustee, we think the intent and purpose of the parties, as expressed therein, was to commit to the trustee full authority to consummate the express object of the agreement in this behalf, and wo can not say from the evidence in this case that the land in question was sold at so inadequate a price as to give rise to any presumption of fraud in the exercise of the power granted. On the contrary, taking all the .evidence together, it is far from clear that the trustee’s action was not an entirely reasonable exercise of his discretion.

The discrepancy of one hundred feet between the nominal frontage of the property measured at right angles, to its side lines, and the actual frontage following the meandering of the Grand river, is, in our opinion, immaterial. There was no mistake upon this subject, and both parties to the sale knew exactly what they were doing, the description of the frontage being the same that had been used in the co-partnership agreement, to which plaintiff was a party.

The main transaction being thus, in our opinion unimpeachable, nothing remains but the matter of accounting between the parties. Under the agreement with them, we think that the trustee is not authorized to make any charges for personal services rendered and such charge as he has made, must be stricken from his account. The commission paid to F. J. Jerome for negotiating the sale is attacked upon the ground that he was, at the time, general counsel for the grantee, a fact, of which the trustee was kept in ignorance. If the evidence sustained this claim, we should agree with plaintiff’s contention, but examination of the evidence leads us to the conclusion that Mr. Jerome’s relations to each party were well known to the other. Having earned his commission by consummating the sale, there is no reason in law or morals why it should not be paid to him as agreed.

With regard to the mortgage which was an encumbrance upon the land that Paige had agreed to contribute to the enterprise, the plaintiff claims that, he is entitled to credit for having pala it. Without going into the intricacies in this question it is sufficient to say that it was Paige’s duty to have relieved the property of this encumbrance, a duty which he had partially discharged when his place in the co-partnership was taken by plaintiff. In the language o£ the new agreement plaintiff has taken "the place of Ralph K. Paige in said co-partnership in all respects, and accounts due from Frank G. Moody to L>. Powers & Sons on account of moneys advanced for the benefit of his interest have been adjusted and agreed upon, and the sum was on the 1st day of April, 1894, $16,965.23.”

The plaintiff is thus in no position to claim that he has succeeded to the benefits but not to the burdens of his predecessor in the co-partnership; he can pot shift this burden from his own shoulders to those of the co-partnership.

The computation of interest upon the advances made by D. Powers & Sons for plaintiff and the credits to be made for previous sales made by the trustee, seem to have been erroneously made by the trustee. The provisions of the contract in this behalf are not very clear, but they seem to mean and to have been 'interpreted by the parties themselves to mean that both principal and interest thereon when in default shall bear interest at the rate of eight per cent, per annum, payable semi-annually. When, however, an installment of interest accruing at eight per cent, falls into arrears, simple interest at the legal rate of six per cent, may be computed thereon. Credits in this account should be made to the plaintiff for his part of the undivided and unexpended proceeds of all sales made by the trustee. The application of these credits should be first to the satisfaction of the interest accrued upon interest; secondly, the interest upon the principal, and thirdly, to overdue installments of principal, if any, and fourthly, to installments of principal not yet due, together with accrued interest.

Upon the subject of counsel fees charged by the trustee and expenses of Mr. Lamb, one 'of the co-partners representing him at the trial, and the costs in this case, we think that- they are entirely proper, and that they should be paid out of the trust fund and thus be borne by the parties in the ratio of their respective interests therein.

In employing an attorney to defend the trust from the attack upon his administration theieof in the matter of this sale, the trustee was acting within his lawful powers, unless such attack were well founded. That the controversy has extended to matters of accounting, not strictly in defense of the trust, is not a matter which we can weigh with nice balance in apportioning the expense of the whole litigation when it does not appear that the trustee has been wilfully unjust or dilatory in the matter.

Upon the question of the partition desired by the plaintiff as to the remaining lands, it is claimed by the defendant that under the rule in Ohio, lands are to be deemed as having been equitably converted into personalty, and therefore, not the subject of partition. ' Whatever may be the doctrine with regard to partnership property under other circumstances, we are perfectly clear that in this case, where all the parties asked for a termination of the partnership and a winding up of its business, the court is authorized to treat the residuum of real estate, after paying all partnership debts, as held by the partners in co-tenancy. We can see no reason whatever for holding that because a partnership has in fact existed, the rule as to partnership property should still be applied when it ceases to exist. The partition will, therefore be decreed.


author: Henry, J.; Marvin,- J., 'and Winch, J.,

text:
    PROPERTY LEASED BY LIFE TENANT TO REMAINDERMAN IN CONSIDERATION OF SUPPORT.
    Circuit Court of Cuyahoga County.
    Sarah Ann DeLong v. Charles W. Horner and Adelia Horner.
    Decided, September 26, 1907.

      Equity — Landlord and Tenant — Court May Decree Money Payment in Lieu of Support.

    Where the owner of a life estate leases the property during the term of her life to the remainderman in consideration of his promise to support and maintain her, and such promise has become incapable of literal fulfillment in a manner tolerable to her, the court may decree an annual money rental in lieu of such support.
   Henry, J.; Marvin,- J., 'and Winch, J.,

concur.

We find in the evidence no ground for rescission of this contract because of the alleged incapacity of the plaintiff to understand that she was conveying a fee simple remainder in her homestead to her newly married son-in-law and daughter and reserving to herself a life estate. The concurrent arrangement, however, by which the young folks were to live with and support her and run the farm during her lifetime, has- proved to be incapable of literal fulfillment in a manner tolerable to the plaintiff. The ample powers of courts of equity in such cases are herein fortified by the defendants’ consent that the decree may take the form of a money allowance to the plaintiff, in lieu of the mode of support provided in the contract. Since she has a life estate in the farm she is in equity entitled to the net annual rental value of the farm without the improvements made bjr the defendants. In view of the run'down condition of the farm at the time she relinquished it, we find from the evidence that its net annual rental value, without the subsequent improvements, would be $1.50 per acre and the plaintiff is awarded judgment at that rate, per acre, for the full period since she has resided elsewhere, and. at a like rate henceforth, so long as and from time to time when plaintiff shall so reside elsewhere, pay-ably quarterly on the 1st day of October, 1907, and at equal quarterly intervals thereafter. The decree will also carry compensation to her in the amount decreed in the court below for the live stock appropriated by but not assigned to the defendants. The payments now accrued shall be payable within thirty days from this date, without interest, and they, together with such as shall hereafter accrue, are made a lien upon the entire interest of defendants and each of them, save that the defendants may as far as their remainder interest is concerned, granted a right of way for railroad purposes tlmough their property, free of said lien; and the respective rights of the parties for the purpose of a division of any entire compensation that may be jointly received by said parties for such grant, whenever joined in by the plaintiff, are hereby found to be as follows, viz: value of the plaintiff’s interest is one-third, and the value of the defendant’s interest is two-thirds.

This court retains jurisdiction of this cause for the purpose and to the extent only of enforcing its decree.'


text:
    CONTRACT OF PURCHASE RELIEVED FROM OPERATION OF STATUTE OF FRAUDS.
    Circuit Court of Cuyahoga County.
    Elita E. Peck v. Elizabeth D. Osborn.
    Decided, November 6, 1907.

      Specific Performance — Statute of Frauds — Receipt for Portion of Purchase Money Sufficient Writing.

    A receipt for a sum of money, which recites that it is to apply upon the purchase price of property at a certain street and number is> sufficient to take the contract out of the operation of the statute of frauds.
   Henry, J.; Marvin, J., and Winch, J.,

concur.

In this appeal a motion for judgment was made by.the defendant at the close of the plaintiff’s evidence upon the ground that the writing by which the plaintiff endeavors to prove the contract for the sale of real estate herein sought to be specifically enforced is insufficient under the Statute of Frauds. We took this motion under advisement to see if the case is not substantially ruled by a former decision of this court rendered in February or March of the January term, 1902, in the case of Power v. Heinze, No. 3332, affirmed without report, 74 O. S., 502. Upon examination of that case we find that writing then held sufficient presented practically the same difficulties as that in the case now before us, save that the mutual promises to purchase and sell were there more explicit. The location of the property and the amount to be paid therefor were very meagerly expressed in the receipt for the down payment, which was the writing relied on. In holding a similar receipt sufficient now we do not go beyond that ease except in inferring mutual promises to buy and sell from the express, mention of a “consideration” or “purchase price,” upon which the down payment is to apply and inferring that Mrs. Osborn who receipted for the money is the seller and Mrs. Peek from whom the money is expressed to have been received is the purchaser. Tn making these inferences we but fob low the same rule of reasonable presumption that was applied in Power v. Heinze, supra. The same rule of construction was thus applied in the case of Eppick v. Clifford, 6 Colo., 493, which is on all fours with the case before us. Although there is some contrariety of authority on this question, we conceive that our Supreme Court has settled the rule in this state. We will exclude all evidence offered by the plaintiff except that adduced to identify the parties and prove the execution of the following document, and such further evidence as the plaintiff may care to introduce to identify the property mentioned therein with that described in the petition.. Upon production of this evidence the motion for judgment will be overruled. - ,

The writing referred to is as follows:

“Cleveland, Ohio, Feb. 4, 1907.
“$50.00
“Received of T. T. Lewis, account E. Peck,
Fifty .......................................... Dollars to apply on purchase price of 1840 E. 82d St.
“Consideration $8375.00.
“Elizabeth D. Osborn.”


text:
    TESTIMONY OF PHYSICIAN AS TO HIS DIRECTIONS BEING CARRIED OUT.
    Circuit Court of Cuyahoga County.
    Clifford Ward v. The Cleveland Electric Railway Company.
    Decided, November 18, 1903.

      Expert Evidence — Hearsay.
    A doctor can not testify that a hypodermic injection was given from the fact that he directed a nurse to give it and was told that it had been given.

      Hart, (Janfielcl <9 Groke, for plaintiff in error.

      Squire, Samders c& Dempsey, contra.
   Henry, J.; Marvin, J., and Winch, J.,

concur.

In this proceeding in error a reversal is sought of the judgment rendered upon a verdict for the defendant in an action for damages for personal injuries alleged to have been sustained by the plaintiff in error while a passenger on one of the cars of the defendant in error, and through the latter’s negligence. The sole defense relied upon was malingering, and the logic of the verdict, is that the plaintiff sustained no injury whatever.

Among other errors complained of is the refusal of the court to exclude a part of the testimony of Dr. Carl Y. Schneider, a witness on behalf of the defendant, who testified as follows, at pages 180 and 181 of the bill of exceptions:

‘ ‘ Re-Direct Examination by Mr. Boyle.
“Q. Tell us- something about this sterile hypo, what is that? A. Simply a sterile hot water.
“Q. And medical property about sterilized hot water more than any other ? A. No, sir.
“Q. What object did you have in prescribing sterilized water for him? A. I prescribe sterilized water when a patient is apparently in pain without any cause.
“Q. That was given by hypodermic syringe? A. Yes, sir.
“Q. What part of the body? A. The nurse probably gave it in the arms.
“Q. What effect did the sterilized or distilled water have on the patient ? A. Quieted the patient.
“Q. What conclusion did you arrive at when he had been uneasy before, and after that went to sleep? A. I naturally came to the conclusion that the pain was imaginary.
“Re-Cross Examination by Mr. Hart.
“Q. Doctor, did you give this hypodermic injection? A. No, sir.
‘ ‘ Q. Did you see it given ? A. No, sir.
“Q. Then you don’t know whether it was given? A. Yes, sir, I do.
‘ ‘ Q. Then you don’t know only what somebody told you ? A. Yes, sir.”

Plaintiff moves that the testimony of the witness as to the administration of the hypodermic injection be excluded and withdrawn from the record. Motion overruled; to which plaintiff then and there excepted.

This motion shoidd have been granted. The evidence objected to was clearly shown to be mere hearsay, and was, therefore, incompetent; inasmuch as it-bore directly upon the main issue of the case, it could not fail to influence the jury in a manner highly prejudicial to the plaintiff.

For this error, and this alone, judgment of the court of common pleas is reversed, and the cause remanded for a new trial.


author: ;'Henry, J.; Marvin, J., and Winch, J.,

text:
    TRIAL OF PRINCIPAL AND ABETTOR..
    Circuit Court of Cuyahoga County.
    State of Ohio v. Frank Nowak.
    Decided, November 18, 1907.

      Criminal %/qvy — Aider .and Abettor.

    An aider and abettor can not be convicted in the same proceeding and by--the same .jury which acquits his principal.;

      N. D. Baker, City Solicitor, for plaintiff.

      J. A. Thompson, contra.
   ;'Henry, J.; Marvin, J., and Winch, J.,

concur:

This proceeding in error is brought to Tévérse the judgment of the court of common pleas, setting aside the judgment of,.the police Court, of the city of Cleveland, whereby Frank Nowak' was convicted of aiding and' abetting extortion by a special constable, one Anton Novak. The affidavit under which both men were arrested and tried charges the offenses defined by Sections 6909 and, 6804, Revised Statutes. The accused were jointly’ tried, the principal being acquitted and the aider and abetter convicted.

The manifest anomaly of this situation is here sought to be justified by the city solicitor, who contends that there is no necessary contradiction therein. It is suggested that the jury’s verdict may well have proceeded upon some assumption not affecting the merits of the transaction, as, for example, that Anton Novak’s appointment as special constable was defective, or that he asked unwittingly the excessive fees which he exacted. If the jury believed either of these things to be true, their acquittal is explained -by their inability to- find that he was ‘ ‘ An officer * * * who knowingly asks,” etc., within the meaning of the extortion statute. This, they could do, it is urged, concurrently with finding that the defendant in error here aided and abetted the perpetration of the extortion which was actually committed.

It is undoubtedly’ true that an aider and abetter may be convicted' without previous trial of the principal, but we do not think it is true that an aider and abetter can be convicted in the same proceeding and by the same jury that acquits his principal.

Section' 6804, Revised Statutes, provides that “whoever aids, abets, or procures another to commit any offense may be prosecuted and punished as if he were the principal offender. ’ ’

This defines a substantive offense, but it is not utterly independent of the principal’s offense, whatever that may be. No one can aid another to commit an offense, if that other does not commit the offense. An act may be ever so reprehensible morally without being criminal, unless a statute defines it as such. The statute defining the offense of aiding and abetting makes the existence of that offense depend upon the actual perpetration of some other offense by the person who is aided and abetted. If the principal is the person who is not guilty of any offense, or if, in other words no offense has been committed, then there can have been no aiding or abetting thereof.

We find no error in the judgment of the court of common pleas and the same is affirmed.


text:
    AS TO IRREGULARITY IN THE METHOD OF AMENDMENT.
    Circuit Court of Cuyahoga County.
    Mrs. Albert Bray v. T. D. Brown et al.
    Decided, November 18, 1907.

      Pleading — Amendment of Pleading by Erasure — Default Not Set Aside for Slight Irregularity — Default Set Aside after Term by Petition Only — Jury Unnecessary to Assess Damages by Default in Actions Ex Delicto.

    1. The amendment of a petition, without notice to defendant, by the erasure of certain words, after the court has ordered them stricken out, is not such an irregularity as to furnish grounds for setting aside a judgment rendered upon such petition after the defendant became in default.

      2. A default judgment alleged to have been fraudulently secured, can not be set aside at a subsequent term by motion; the application must be by petition.
    3. Where an action is ex delicto and the defendant is in default of an answer or pleading and the plaintiff appears and submits his case to the court upon the petition and evidence, the court has power to fix the amount of damages without the intervention of a jury.

      J. A. Fenner, for plaintiff in error.

      J. J. McCormick, contra.
   Henry, J.; Marvin, J., and Winch, J.,

concur.

The original action was begun in the court of a justice of the peace whence it was appealed to the court of common pleas. There Mrs. Bray filed her petition, November 19, 1906, to recover damages for injury to household goods, caused by the negligence of the defendants in whose custody, as warehousemen, the same had been placed. A motion to strike from her petition words indicating that she had prevailed in the justice’s court was granted February 8, 1907, and on February 13, 1907, she was permitted to and did amend her petition by erasing therefrom the words previously ordered to be stricken out. This was done without any notice of the application having been given to the defendants, and without refiling the petition. The defendants then had no pleading on file, nor had they filed any answer or demurrer when, on March 25, 1907, a day in the January term, the following order was entered upon the journal:'

1 ‘ This cause came on to be heard on the petition and evidence, the defendant being in default of answer or demurrer, and was submitted to the court; on consideration thereof, the court find for the plaintiff and assess her damages in the sum of one hundred and fifty dollars ($150). It is therefore considered that said plaintiff recover of said defendants her said damages and also her costs herein. Judgment is rendered against the defendants for their costs herein.”

Nothing further was done in the case until the April term, when a motion to vacate said judgment was filed on April 11, 1907. Said motion came on for hearing in the July term of said court, and was granted July'26th, 1907. The grounds alleged for said motion were:

“Said judgment was secured here erroneously on the part of the plaintiff unknown to defendants, in that, without consent of or notice to defendants, she procured an order to, and did amend her petition upon which said judgment was based; that said judgment was obtained in a material part by false testimony on the part of plaintiff, which ordinary prudence on the part of defendants could not have guarded against or anticipated; that the amount of unliquidated damages were ascertained and fixed without the intervention of a jury.”

This proceeding in error was begun to reverse the order of the court of common pleas granting said motion and vacating said judgment.

As to-the first of said grounds, it is suggested that the rules of the common pleas court required notice to the opposite party of plaintiff’s application to amend her petition, but no such rule of the common pleas court is brought into the record by the bill of exceptions; we are, therefore, left entirely to conjecture as to its existence. If we could presume in support of the action of the court below in vacating its own judgment that if it found irregularity in a violation in this respect of its own rules, of which it would of course take judicial notice, still we fail to see how such an irregularity in respect in obtaining the judgment which was subsequently vacated. The judgment can not be deemed to be in any sense the effect or consequence of such irregularity. It is true that the defendants were not in default after the granting of the motion to the petition until the objectionable matter was stricken therefrom, as required by the court. This requirement could, however, be complied with by the plaintiff at any time without leave of court or notice to the defendant, by the filing of an amended petition. The plaintiff preferred to and did accomplish the same object in another and perhaps irregular manner, but of the action taken, whether regular or irregular, the defendants were bound to take notice precisely as of the filing of an amended petition.

For a month and twelve days after the petition was thus amended, no further action was taken. The defendants became in default for answer, and the cause being thereafter taken up for trial and disposed of, such disposition was in no wise affected by the prior irregularity, if any there was.

As to the second ground assigned in the motion to vacate, to-wit: that the judgment “was obtained in a materal part by false testimony on the part of the plaintiff, ” it is sufficient to say that that averment, if true, would amount' to neither more nor less than an allegation of fraud practiced by the successful party in obtaining the judgment. This is a ground for vacating a judgment as provided by paragaph 4, Section 5354, Revised Statutes. It can not, however, be asserted after term by motion, but only as provided by Section 5358, Re2vised Statutes, by petition (Ralston et al v. Wells, 49 Ohio St., 298). The application in this case was not by petition but by motion, and hence this ground could not properly be asserted or considered.

The third ground of the motion to vacate, to-wit: “that the amount of unliquidated damages were ascertained and fixed without the intervention of a jury,” is founded upon Section 5130, Revised Statutes, which provides that:

“Issues of fact arising in actions for the recovery of money only, or specific real or personal property, shall be tried by a jury, unless a jury trial be waived, ’ ’ etc.

Section 5081. Revised Statutes, provides that “allegations of value, or of amount of damages, shall not be considered as true by failure to controvert them.”

By Section 5204, Revised Statutes, it is provided that:

‘ ‘ In actions arising on a contract the trial by jury may be. waived by the parties, and in other actions with the assent of the court, in the following manner:'
“1. By the consent of the party appearing, when the other party fails to appear at the trial by himself or attorney.”

The action below was not an action ex conlraclw but an action ex delicto founded upon a breach of the common law duty of a bailee for hire. It falls, therefore, within the class of “other actions” where a jury may be waived by the parties “with the assent of the court. ’ ’ This distinction, it may be said parenthetically, appears to. have been made by the Legislature to the end that the court may not, without its assent, be compelled to undertake the assessment of damages in actions of tort, where the elements of damages are incapable of mathematical calculation in terms of money.

The question of irregularity hinges upon whether a waiver of jury trial in the manner provided by Section 5204, Revised Statutes, is to be inferred from the journal entry of judgment in this case, as already quoted. We do not think that Section 5320, Revised Statutes, providing how damages may be assessed upon default can have any application to authorize the assessment of damages by the court in a case where the Constitution guarantees a- jury trial, and such jury trial has not been waived.

In Bonewitz v. Bonewitz, 50 Ohio State, 373, the first two paragraphs of the syllabus are as follows:

“1. A party may waive his right to a jury trial by acts as well as by words.
‘ ‘ 2. And where, in a case of which the court of common pleas having jurisdiction of the parties, may also, by consent, acquire jurisdiction to try the cause without a jury, the record shows that the parties appeared, and neither demanded nor waived a jury, but without objection submitted the cause to the court upon the pleadings, evidence and argument of counsel, it is not error for the court to proceed to final judgment in the case. ’ ’

The journal entry of judgment in this case, expressly discloses that ‘ ‘ the cause came on to be heard on the petition and evidence, the defendant being in default of answer or demurrer, and was submitted to the court.” This was an affirmative act by the party or parties before the court amounting to a waiver of a jury and the choice, instead, of the trial judge as the tribunal for the assessment of damages. The journal does 'not disclose whether both parties were present, or only the plaintiff; but in either case the submission by all present was complete, when made effectual by the assent of the court. Such assent is implied in the very fact of the court’s finding for the plaintiff, assessing her damages and rendering judgment. There was thus, no irregularity in ascertaining the amount which plaintiff was entitled to recover without the intervention of a jury.

Inasmuch therefore as the record affirmatively shows that the judgment complained of was not secured by either of the alleged irregularities relied on, the court of common pleas was without authority to vacate its own judgment after the term at which it was rendered, and for its error in so doing, its order of vacation will be reversed, and this court proceeding to render the judgment which the court below should have rendered, overruled the motion to .vacate, thereby restoring the original judgment.


text:
    PROPERTY IN THE CARCASSES OF DEAD ANIMALS.
    Circuit Court of Cuyahoga County.
    J. L. Stadler v. City of Cleveland et al.
    Decided, December 9, 1907.

      Police Power — Municipal Corporations — Health Regulations — Disposing of Carcasses of Dead Animals.

    The right of a municipal corporation to regulate the disposal of dead animals is limited to the reasonable necessities of the public health and welfare, and can not be so exercised as to deprive the owner of his property in the carcasses.
    W. H. Boyd and E. J. Hart, for plaintiff in error.

      N. D. Baker, City Solicitor, contra.
   ITenry, J.; Marvin, J., and Winch, J.,

concur.

The plaintiff seeks to enjoin the defendant’s alleged unlawful interference with his hauling in the innocuous carcasses of animals, Avhich, though not fit for food, are his property, from points Avithin the city, through the public .streets, to his rendering works without the city. Judgment was rendered against him beIoav on demurrer to his petition. California Reduction Co. v. Sanitary Reduction Works, 199 U. S., 306.

In the exercise of the police poAver, municipal corporations are authorized by Section 1536-761, Revised Statutes, to regulate the disposal of dead animals. But inasmuch as dead animals are valuable for purposes other than food, and the right of private property therein clearly exists, the city’s right to regulate the disposal thereof is limited to the reasonable necessities of the public health and AA^elfare.

The petition alleges that the interference complained of is unlawful and that the carcasses in question are not noxious. The demurrer should therefore have been OA^erruled. Whether the petition is vulnerable to a motion to make definite and certain Ave do not decide, nor is it necessary to speculate what ordinance regulations, if any, on the subject may be valid. That issue can doubtless be raised by ansAver- to the merits.

Reversed and remanded.


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    WORKMAN INJURED ON A DEFECTIVE SCAFFOLD.
    Circuit Court of Cuyahoga County.
    Mat Garrity v. A. J. Farber et al.
    Decided, December 16, 1907.

      Master and Servant — Negligence—Risk Assumed try Workman tty Using Defective Materials to Construct Place to Work.

    When a workman had used defective materials in erecting a scaffold and was afterwards injured by its collapse, the fact that he had called the foreman’s attention to the defective material and been assured by him that it was all right, does- not obviate the workman’s assumption of risk.

      E. P. Strong and W. E. Gunn, for plaintiff in error.

      J. H. Sampliner and M. J. Farber, contra.
   Henry, J.; Marvin, J., and Winch, J.,

concur.:

This was a personal injury damage case, wherein a verdict for the defendants below was directed on their motion made at the close of the plaintiff Is evidence. Judgment having been rendered accordingly, the plaintiff below prosecutes this proceeding in error.

' The' injury. of which he complains was occasioned by ’the-breaking of one of the supports under a low scaffold whereon he was standing. The scaffold’ consisted’ of planks laid upon said supports, and the supports consisted of two upright boards or planks connected at the top by a horizontal board or plank. Each support was made fast to one of the several posts in the building where the accident occurred, the upright part resting at the bottom on the floor on either side of the post. One of these upright boards broke because of being cross-grained. and Very dry. It does not appear that it Was rotten in any other sense.

Garrity was told by his foreman to 'use these supports in erecting the scaffold. When he came to do so the appearance of the supports led him to suspect that they were not strong enough for the purpose, "and he complained to his’ foreman,- who- assured him that they were all right and had. been used by other workmen. Both Garrity and his foreman were carpenters of many years experience. Close inspection of the upright that broke would have disclosed its condition, and Garrity had the same opportunity to know its condition as his foreman, save that the latter perhaps knew that the boards had been in a dry place where the temperature was 70 degrees.

• Uponfthis state of facts we are. asked to hold that the foreman^ assurance obviated Garrity’s assumption of the risk-.

The rule is, of course, that an employe must allege and prove either a’ promise to 'repair on which he relied, or else that he had no knowledge of the defect or danger complained of and would not, in the exercise of ordinary care, have discovered the same; and he is conclusively held to appreciate the dangers which may arise from defects of which he has, or in the exercise of due care, would have knowledge. The Pennsylvania Company v. McCurdy, 66 Ohio State, 118.

On the facts.of this case, Garrity’s suspicions as to the weakness of the supports having been aroused, it became his duty as an experienced carpenter about to use the same, in constructing a scaffold whereon he was about to work, to scrutinize the same with care. No assurance short of a promise to repair on the part of his foreman, could, in such case, suffice to shift the risk from his shoulders, to the shoulders of his employer.

The judgment below is affirmed.


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    REMEDY OF ONE EXPELLED FROM BENEFICIAL SOCIETY.
    Circuit Court of Cuyahoga County.
    Moses Klein v. Amazon Lodge No. 567.
    Decided, December 16, 1907.

      Mutual Benefit Societies — Member Must Bcehaust Remedy Within Order Before Appealing to Oourt.

    When one has been expelled from membership in a fraternal or beneflcal organization, he must exhaust all remedies provided within the organization before appealing to the courts.

      Kerruish & Kerruish, for plaintiff in error.

      Strimple & Scrimshaw, contra.
   Henry, J.; Marvin, J., and Winch, J.,

concur.

This was an action for damages in which the plaintiff in error, who was plaintiff below, sought redress for alleged unwarrantable expulsion from the defendant fraternal order,.of which he had been a member. The regulations of the order provide with great particularity the procedure in such cases. That procedure was so far pursued as that Klein, after due notice, was tried for offending against one of the rules of the order, and as a result of such trial his expulsion occurred. Subsequently he invoked a review of this action by an appellate tribunal within the order, but he failed to pursue his remedy in this behalf as far as the regulations permit and contemplate. Instead, he brought this action, alleging that the appellate procedure was not convenient nor definitely pointed out either by the officers of the order or by its regulations.

An inspection of the regulations themselves shows that this claim was not warranted, and because he has failed to exhaust his remedy within the order, as provided by its regulations, his resort to the civil courts was premature. See Meyers et al v. Jenkin’s Adm’r, 63 Ohio St., 101.

The remarks of the court in the hearing of the jury during the trial complained of by the plaintiff in error as prejudicial; alleged errors in the charge to the jury, and the alleged want of merit in the case made against Klein on the trial within the order, are questions, as we view this record, of no moment inasmuch as, upon the conceded facts and documentary evidence, the judgment must necessarily have been rendered for the defendant below.

The judgment below is affirmed.


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    RIGHT OF ABUTTING OWNER TO BUILD SIDEWALK.
    Circuit Court of Cuyahoga County.
    T. H. Johnson v. City of Glenville.
    Decided, December 24, 1907.

      Assessments — Municipal Corporations — Property Owner Not Estopped from Resisting Assessments by Signing Petition for Improvements —Property Owner Must be Given Opportunity to Build Sidewallc.

    1. A property owner is not estopped from enjoining the collection of an assessment illegally levied against his property, because he had signed a petition asking for the improvement to pay for which the assessment is levied.
    2. A property owner must be given an opportunity to elect whether or not he will build a sidewalk in front of his premises, and may enjoin the collection of an assessment to pay for one built by the city when not given such opportunity.

      Thomas H. Johnson and Ford, Snyder c& Tilden, for plaintiff in error.

      N. D. Baker, City Solicitor, and IT. D. Wilkin, contra.
   Henry, J.; Marvin, J., and Winch, J.,

concur.

The injunction prayed for is allowed. The plaintiff was given no opportunity, before the construction of the sidewalk in front of his premises, to elect whether he or the city should perform the work. Section 2330a. Revised Statutes, the only statute purporting to authorize a different procedure, was not only unconstitutional, but was not attempted to be complied with.

Nor can we uphold the remainder of the assessment for this street improvement. The publication of the notice of the filing of an estimated assessment appears to have been made but twice, instead of three times, as required by law.

It is urged, however, that the plaintiff is estopped to complain, after the work is completed, of the assessment to pay for the same, in view of the fact that he petitioned for the improvement and was actually served with notice of the declaratory resolution concerning the necessity thereof. It does not appear that he had actual knowledge of the further proceedings until aftér the work was done.

In McGlynn et al v. The City of Toledo, 22 C. C., 34, affirmed without report, 67 O. S., 498, it was said by Parker, J., at p.-39 “that what the parties asked for at the hands of the'council was that they should proceed under valid laws, and proceed according to law, to make this improvement and the assessment.”

The plaintiff is thus not estopped to maintain this action, and,. unless the parties can agree upon a journal entry excluding from the operation of our injunction such part of the assessment as represents actual benefit to the plaintiff from the entire improvement, except the sidewalk, the defendant must be remitted to such remedy, if any, as it has under Section 1536-268, Revised Statutes.


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    ACCEPTANCE OF PAYMENT BY CREDITOR FROM INSOLVENT DEBTOR.
    Circuit Court of Cuyahoga County.
    Pabst Brewing Company v. Cassius L. Johnson et al.

    Decided, December 24, 1903.

      Insolvent Debtor — When May Prefer Creditor.

    Section 6343, Revised Statutes, as amended by 95 O. L., 608, does not alter the rule of Gross v. Carstone, 49 O. S., 548, that a creditor may accept payment as security from an insolvent debtor, so long as it is not obtained for the benefit of a third party also.

      Klein Karris, for plaintiff in error.

      Tanney é Linder, contra.
    Henry, J.; Marvin, J., and Winch, J., concur.

      Affirmed without opinion, Pabst Brewing Co. v. Peltz et al. 81 Ohio State, 566.

   The petition must be dismissed. Section 6343, Revised Statutes, as amended by 95 O. L., 608, does not, we think, alter the rule of Cross v. Carstone, 49 O. S., 548, that a creditor may ac-. cept payment or security from an insolvent debtor, so long as it is not obtained for the benefit of a third party also.

Whatever may be effect of the words “in trust or otherwise” and the words “to prefer one or more creditors,” we do not infer that the Legislature intended so revolutionary a change as plaintiff contends.

Tt follows that the first assignment to Pelitz did not bring this case within that statute.

Nor could the pendency of this action, considered as a creditor’s bill, have operated to prevent the administrator of Henry P. Johnson’s estate from exercising his right and discharging his duty of paying the fund in question to the administrator of Myra C. Johnson’s estate when the latter ivas appointed.

And whatever might have been the duty of Myra’s administrator, had he been made a party before disbursing the fund, we see nothing in the pendency of the action against Cassius L. Johnson et al to prevent lawful payment by said administrator to him, or on his order, to his creditors. And this is so, even though such transaction resulted in preferring the creditors so paid.

The end accomplished was not unlawful. Neither was the concerted means. Hence there was no actionable conspiracy.


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    EVIDENCE AS TO TEST MADE AS TO QUALITY OF GOODS.
    Circuit Court of Cuyahoga County.
    The Cogswell Dental Supply Co. v. Gideon Sibley.
    Decided, January 20, 1908.

      Hales — Evidence—Warranty—Result of Laboratory Test of Goods Sold on Warranty Admissible.

    In an action for the price of manufactured goods sold on warranty, evidence of’laboratory tests of the goods delivered is admissible.

      Billman Billman, for plaintiff in error.

      Carr, Stearns c& Chamberlain, contra.
    Henry, J.; Marvin, J., and Winci-i, J., concur.
   This was an action .for the price of a large number of sets of artificial teeth sold by the defendant in error to the plaintiff in error, which is a dealer in dental supplies. The defense was breach of warranty of quality.

On the trial the burden of the proof was, of course, upon the defendant below, plaintiff in error here, and it offered to show by its- clerk in charge of its teeth department that the said teeth, when tested in the laboratory, were found to be brittle and worthless, and of no value, that the metal pins attached to said teeth were brittle and fragile and broke on slight pressure, and that the teeth were absolutely worthless and could not be used. To the exclusion of this evidence the defendant excepted and rested its case. Thereupon the court directed a verdict for the plaintiff, which was accordingly rendered.

These rulings of the court we think were erroneous. True, the teeth were exhibited to the purchaser at the time of the purchase, placed in stock by him and an effort made to sell them, but with very little success. Upon reports from customers, that the teeth were unfit for the use intended, the fact developed, according to the proof offered but excluded, that when tested in the laboratory they were found to be defective and worthless.

Apparently the.se defects wer.e not discoverable upon examination at the time of the purchase. The .seller’s agent represented them to be good and strong, and the purchaser stated.to the agent at the time that he bought them upon that representation. The evidence offered should have been received and the case submitted to the jury. , .......

For the reasons indicated, tin: judgment of the court of common pleas is reversed and the cause remanded for a, new tidal.


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    RIGHTS OF ABUTTER. ON RAILWAY CROSSING HIGHWAY ABOVE GRADE.
    Circuit Court of Cuyahoga County.
    Joseph A. Ritter et al v. The Cleveland Short Line Railway Company.
    Decided, January 20, 1908.

      Railroads — Highways—Eminent Domain — Easement of Access from Abutting Lot to Street is Property — Laches May Prevent Owner Irom Enjoining the Talcing of Property- — County Commissioners and Railroads May Agree as to Manner of Crossing Highways. .

    1. The easement of access to an abutting lot from the street is .property within the meaning of Section 19, Article 1, of, the state G,onstitution and when a highway crosses a railroad track by means of, a bridge, the railroad in constructing the bridge and approaches thereto becomes liable to an abutting lot owner, whose' easement of access to his property is injured by the throwing up of an embankment in the stieet in front thereof.
    2. Public policy may require a court to hold that an owner, who has delayed the assertion of his rights until public considerations have intervened, has forfeited the right to reclaim property taken a,nd is remitted to his rights of compensation.
    3. County commissioners' are not precluded by Section 3337-17fc. which provides that except in certain cases new lines of railroad shall cross highways above or below grade, from making, a contract as to the manner of crossing a highway under the provisions of Section 3283, Revised Statutes, providing that public officers and railroads may agree upon the terms upon wliich railroads may occupy public property. ■

      IT. H. Boyd,, for plaintiff in error.
    Kline, Tolies cb Goff, contra.
    'Henry, J.; Marvin', J., and Winch, J., concur.
   The facts disclosed on the trial of this appeal are that the plaintiff'owns an improved parcel of land abutting upon a state road, in this county, near the.point where said road is intersected by the Cleveland Short Line Railway Company’s railroad. This road being newly established comes within the recently enacted provisions of law prohibiting the creation of grade crossings, and pursuant to the terms of Section 3283, Revised Statutes of Ohio, the railway company and the county commissioners have entered into an agreement whereby the grade of the railroad is to be seven feet below the former established grade of the highway, and the grade of the latter will be elevated eighteen feet above its former level.

The railway company in making the change of grade in the highway, pursuant to this agreement, has earned the slope or approach to the crossing to a point in front of plaintiff’s premises and is about to obstruct plaintiff’s driveway by an elevation of the roadway in front of the entrance to his premises to a height of four to six feet. Prior to the commencement of this ease the highway had been temporarily diverted and a large part of the filling in of the highway on the opposite side of the railroad from plaintiff’s premises had been made; some progress also upon the filling in of the highway on plaintiff’s side of the railroad had been made, and in that state of affairs the plaintiff seeks to enjoin. this interference with the access to his premises.

The first claim of the plaintiff is that the entire-proceeding* of the county commissioners and the railway company is illegal and 'unauthorized by the section to which reference has been made, the claim being that the whole subject is governed by Sections 3337-8 el seq. We think, however, that Revised Statutes, Section (3337-17/c) clearly contemplates a resort to such general laws, including Section 3283, as may be applicable to such a situation. ■

Section (3337-17/c) reads as follows:

“Every railroad company constructing a new line of railroad, under its charter powers, across a highway, shall construct the same above or below the grade of the highway, unless permitted in the manner hereinafter provided, to construct the same at grade; and such railroad company, may exercise the power contained in its charter and the general laws, for altering the grade and location of highways in order to avoid grade crossings. ’

That Section 3283 applies as well to the crossing of highways by railroads as to the longitudinal occupation thereof is clearly implied in the case of The Lake Shore & Michigan Southern Railway Company v. The City of Elyria, 69 Ohio State, 414. And this section provides that:

“If it be necessary, in the location of any part of a railroad, to occupy any public road, street, alley, way, or other ground of any kind, or any part thereof, the municipal or other corporation or public officers or authorities, owning or having in charge thereof, and the company, may agree upon the manner, terms, and conditions upon which the same may be used or occupied.”

' This section seems to invest the county commissioners with the requisite authority to enter into the kind of agreement here under consideration. It further provides the method of procedure to be followed in case of disagreement between the railway and the public authorities. Section 3337-8 et seq., makes no provision for such a contingency.

We do not think that a resort to Section 3283 is precluded by the existence of the section last referred to, and it being undisputed that the provisions of Section 3283 if applicable, have been followed, we can not enjoin the continuation of the railway company’s work on the ground of any illegality in the agreement under which it is proceeding.

It is further claimed that even if the work being done by the railroad company is lawful, the plaintiff’s right to an injunction nevertheless exists in respect of any infringement of his property rights by impairment of the access to his property in consequence of said work.

It is admitted in this case that the damage, if any, which he has sustained, is ascertainable in money, but it is urged, on the part of the defendant, that although plaintiff’s premises are improved and consist of a residence site with a lawn and a house, the latter being remote enough from the highway so that it is not directly affected by the slight change of the level thereof, the impairment, if any, of his access thereto is not the taking of property for which, under the Constitution and laws of this state the defendant must make or secure a compensation in money, but is at the most, an incidental damage for which he has his action at law.

With this view we do not agree. In the case of McNulta, Receiver, v. Ralston, 5 C. C., 330, it was held that the easement of access from the street to an abutting lot and from the lot to the street is properly within Section 19 and Article I of the Constitution of this state, and when a highway crosses a railroad track by means of a bridge, the railroad in constructing the bridge and approaches thereto becomes liable to an abutting lot owner, whose easement of access to his property is injured by the throwing up of an embankment in the street in front thereof.

See also Hatch v. C. & I. R. Co., 18 Ohio St., 92.

The taking of property in such cases being by and on behalf of a private corporation is a taking for which compensations under the Constitution, must be rendered or secured in advance; although, of course, the property owner may, if he prefers, wait until after the taking, and bring his action to compel appropriation for damages, as the case may require.

In this case, however, the public interest can not be ignored, and because the public use of the highway will be seriously interfered with so long as this change remains in its uncompleted state, we are bound to consider whether or not the |)laintiff by waiting until the highway had become thus obstructed has deprived himself, as against the public, of his undoubted right to prevent the consummation of the threatened injury of which he complains until he shall have been first compensated.

In Goodwin et al v. Cincinnati & Whitewater Canal Co. et al, 18 Ohio St., 169, it is recognized that considerations or public policy may.require a court to hold that an owner who has delayed the assertion of his rights until such public considerations have intervened, has forfeited his right to re-claim property taken and is remitted to his rights of compensation. We think the same principle applies in this case, even though the^jury is still only threatened, and for this reason and because the plaintiff delayed bringing his action until the public highway was so greatly obstructed that it will require less time to complete the work than to undo it, his prayer for injunction is denied and he is remitted to his plain remedy at law.

The petition is therefore dismissed.