text:
    FIRE INSURANCE.
    [Circuit Court of Ashtabula County.]
    Eureka Fire & Marine Insurance Co. v. William Gray.
    Decided, January 31, 1902.

      Proofs of Loss — Delay in Furnishing — Not Available to an Insurance Company, When — Arbitration—Total Loss — Partial Loss — Section 3643, Prescribing Determination as to, by Jury.

    1. Where an insurance policy stipulates that proofs of loss must be forwarded within a reasonable time, but provides no penalty except that payment on the policy will be delayed until the proofs are furnished, the right to recover on the policy does not depend upon the time when the proofs are furnished.
    2. The amount to be recovered on a fire policy in case of a total loss is a matter of public policy, and can not be waived; nor can it be arbitrated unless the loss is partial only. It follows, therefore, that where an award has been made, and an action is thereafter brought for a total loss, there can be no recovery unless a total loss is proven, and the only question for the jury is whether the lo'ss is partial or total.
    Laubie, J.; Burrows, J., and Cook, J., concur
    Heard on error.
   The Eureka Fire & Marine Insurance Company v. W. Gray is a proceeding in error to reverse a judgment obtained by Gray upon a policy for the loss of a building, and in which the recovery was for a total destruction and the value of the building as mentioned in the policy.

Various defenses were set up, only one of which need be noticed, to-wit, an agreement to arbitrate and an award by the arbitrators.

Exceptions were taken to certain testimony offered upon the part of the plaintiff below in regard to the proofs of loss, and what had taken place at the time the agreement to arbitrate was signed, no part of which was prejudicial to the defendant, because the only issue as to the proofs of loss was as to time in which they were submitted to the company. There was no provision in this policy which made it void, or which provided that no action could be brought upon the policy if proofs of loss were not submitted within a reasonable time. While it is stated in the policy that proofs of loss must be forwarded within a reasonable time, the only penalty for failure to do so is that payment of the loss will not be made until proofs of loss are furnished. They were forwarded in this instance some months after the fire, and even if they were not forwarded within a reasonable time, as the only penalty was that the loss should not be payable until they were furnished, all these exceptions in that behalf were immaterial, and the answers to the questions were not prejudicial to the defendant below.

As to the matter of the arbitration and award set up by the company, there was no denial by the plaintiff below, and, hence, on that account, unless there was a total loss, no recovery could be had, as the action was not upon the award. The Supreme Court of the state has held that the provision of Section 3643, Revised Statutes, in regard to the amount to be recovered in ease of total loss, is a matter of public policy, and can not be waived by the parties; but that would not apply if it was but a partial loss.

Where there is a partial loss only, parties may agree to submit the question to arbitrators to determine the amount of the loss, as was done in this case; but where the loss is total the statute fixes the amount of recovery to be the value of the building as specified in the policy, and, although the parties may have submitted to arbitration the question of the amount of the loss, the assured can not be held to be bound by the award. This was recognized as the law by the court in its charge, and the jury were instructed that there could be no recovery in this case unless the evidence satisfied them that there was a total loss; and the court defined what a total loss was, and told the jury the amount that they must render judgment for in case they found there was such total loss. So, under the instructions which the court gave to them, the jury found that there was a total loss, and the evidence discloses conclusively that the loss was total. The evidence on this point submitted to the jury showed that even the walls that were left would be of no particular value in rebuilding. So far as the charge of the court is concerned, the court gave substantially the request of the defendant below, and gave instructions that were prejudicial to the plaintiff and in favor of the defendant upon the question of the proofs of loss. No such charge ought to have been given. The only question which should have been submitted to the jury was whether the plaintiff had proved a total loss or not.

The judgment of the court below will be affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    EXPENSES OF AN INDEPENDENT MILITARY COMPANY.
    [Circuit Court of Cuyahoga County.]
    Peter Witt, on Behalf of Cleveland, v. J. P. Madigan, Director of Accounts.
    Decided, June 16, 1902.

      Independent Military Companies — Organized under Section 3056 — A Part of the State Militia — State not Relieved from Armory Expenses — And Payment of Janitors hy a Municipality is Unauthorised.

    Janitors in charge of an armory, used by an independent military company, organized under Section 3056, and thus a part of the active militia of the state, must look to the state for payment for their services, and a municipal ordinance providing for their payment is invalid.
    Caldwell, J.; Hale, J., and Marvin, J., concur.
    Appeal by defendants.
   This case involves Section 3056, Subd. 1, 2, 3, 4, 5 and 6, Revised Statutes, and is brought to enjoin the city of Cleveland from paying janitors for the care of armories occupied and used by certain military companies, which janitors are employed by ; and under the control of the company employing.

The main question in the case is, are the Cleveland City Guards a part of the militia of the state? If they are, then all expense connected with such guards must be paid by the state. On the other hand, if the Cleveland City Guards are not a part of the militia of the state, but an organization purely local, then it is claimed that the law is constitutional and can be enforced. And if this latter view is correct the petition should be dismissed, otherwise the injunction should be made perpetual.

This section purports to give the citizens of Cleveland authority to organize, arm and equip an independent infantry company consisting of not less than fifty nor more than one hundred active members, to be known as the Cleveland City Guards, and requires the members to sign an agreement to be subject to all calls of the mayor, or of the governor of the state, in case of insurrection or riot or when there is reasonable apprehension thereof, which written agreement shall be deposited with the mayor of such city.

Subdivision 1, Section 3056, Revised Statutes, gives the governor substantially the same control and authority over these companies that the law does over the militia of the state.

Subdivision 2 provides for contributing members, and the amount, or minimum of the amount, that each contributing member must pay. This same provision exists in regard to the militia of the state under the general provision.

Subdivision 3 provides how the members are to be governed, and the general provision is, that “The active and contributing members of such company shall be entitled to all the privileges and exemptions allowed members of the Ohio National Guard. ’ ’ And then provides the same penalties for refusing to respond to a call of the mayor or governor, as is provided in case of such refusal on the part of the National Guard; and provides the minimum number of men that shall be at all times in the company. It then provides that the company shall have no pay from the state for camp duty, transportation, “or for any other purpose.” This “or for any other purpose” should be, under a well known rule of construction, confined to “for like expenses” to that of camp duty and transportation, and can not be construed to apply to allowance for expenses when called out by the governor of the state.

Subdivision 4 provides for calling them out in case of riot or disturbance, by either the mayor or the governor, and, when so called, they shall be subject to the orders of such mayor or governor.

Subdivision 5 provides for existing independent companies organized and bringing themselves under this act.

Subdivision 5a provides for the city paying for janitors for the care of the armory occupied by, and used by, such companies for military purposes; the janitor to be employed by and to be under the control of the company.

It is our judgment that these companies, formed under the above provisions of law, are so far a part of the Ohio National Guard, and are to such an extent active militia under the laws of the state that provision for their expenses, such as are involved in this case, are to be borne by the state, and not by the county or the city.

There are the same provisions in regard to organization, in regard to the duties to be performed, as to whose orders they shall be subject, as to contributing members, as to privileges, penalties and records, as to the number of members composing the companies, as in regard to the Ohio National Guard.

There are a number of cases cited on the hearing in this case, that these companies, being a part of the National Guard, must be maintained in any degree by taxation, by tax levied on all the property, of the state, and a statute authorizing a local tax for such purpose, or providing for their pay, or expenses pertaining to their organization, out of the treasury of the state, without any provision for repayment from the state of such expense, is unconstitutional. The case of Hubbard v. Fitzsimmons, 57 Ohio St., 436, 447, 449; State v. Kreighbaum, 9 C. C., 619, and various other cases cited. Also Presser v. Illinois, 116 U. S., 252.

It is unnecessary in this connection to discuss the question of ■when the militia of a state passes from under the control of the state to that of the national government, as it would lead to no definite conclusion of the real questions involved in this action. The general rule, as established by the authorities, is well stated in the last case above referred to, and it is evident that these companies under consideration, if not private companies of the state, are a part of the militia of the state; and, having found that they are a part of the militia of the state, it follows from the various decisions in this state, that the expense of maintaining them and providing quarters for them and caring for those quarters is a part of the state expense that must be raised by; a state tax.

Samuel Doerfler, for plaintiff.

Beacom, Balter, Payer, Gage & Carey, for defendants.

Our conclusion is that the ordinance in question is unauthorized and invalid, and the injunction against the payment of the expenses of the janitors under the ordinance is made perpetual.


text:
    CONSIDERATION FOR. CONVEYANCE FROM FATHER. TO SON.
    [Circuit Court of Morrow County.]
    Emma Kime v. John Addlesperger et al.
    Decided, June Term, 1903.

      Deed — In the Nature of a Testamentary Act — Consideration for Executing — When Made to a Son — Support for Life of Grantor and His Daughter and Payment of His Debts Sufficient — Necessary Capacity to Execute Such a Deed — If Attached, Burden of Proof Is Upon the Plaintiff.

    1. A deed executed by a father to his son, under an agreement that the son is to care and provide for his father and furnish all that his condition requires, and furnish a home and the necessaries of life to his daughter so long as she lives, and also pay the father’s debts, 'is for a valuable consideration.
    2. The proper test of mental capacity on the part of one executing such a deed is his relations to those who are the natural objects of his bounty, and his capacity to understand to a reasonable degree the condition of his property and the nature and effect of what he is doing.
    3. The fact that one of the parties to such a conveyance was well along in years, and the father of and living with the grantee, does not put upon the grantee the burden of showing affirmatively that there was no undue influence exerted or fraud practiced, but the ordinary rule prevails that fraud and undue influence must be proven by the one alleging them.
    Voobhees, J.; Douglass, J., and Donahue, J., concur.
   This action comes into this court on appeal; and the object of the plaintiff’s suit is to set aside a deed that was made by one William Addlesperger to his son, the defendant, in 1898.

The grounds on which it is sought to set aside the deed are:

First. That the grantor, at the time the deed was made, in December, 1898, was not of sound mind, or had not mental capacity sufficient to make a contract.

Second. That by reason of his age, infirmity of body and mind, he was easily influenced, and the defendant taking advantage of his physical and mental condition, induced him to make the deed to him without consideration, and as a fraud upon the grantor and those who were the proper objects of his bounty.

The contention of the plaintiff is that by making this deed the old gentleman had deprived himself of his property, and the son who received it (they living together in the same family) exercised such influence over his father that it was undue influence and fraud, and undue influence would be presumed from the relation they sustained to each other. And to more concisely state the issue, the plaintiff claims the grantor, at the time the deed was made, was not of sufficient mind to make a contract, and that the deed and contract were not his free act but was the result of undue influence exercised over him by his son, who was the grantee named in the deed.

The defendant denies that his father was not of sound mind and memory, but on the contrary that he was at the time the deed was made able to and did comprehend the business in which he was engaged; that it was his free act and deed, voluntarily entered into, and the grantor, by making this arrangement, secured to himself what would be an adequate and fair consideration of the premises conveyed.

Taking up the ease in this order: The first inquiry is, was the old gentleman, at the time this deed was made, capable mentally to make a contract? A good deal of evidence has been introduced by the respective parties bearing upon this issue. In addition to the testimony that has been introduced it is necessary to look at the circumstances surrounding the parties at the time the deed was made, for the reason that the circumstances and the purpose for which the contract was entered into throw light upon the transaction as to whether it is reasonable or otherwise; and the situation of the parties at the time ■ the contract was executed is important and bear upon the question involved as to mental capacity.'

Briefly referring to the situation of these parties: Some years before this transaction occurred the old gentleman’s wife had died, leaving him alone, excepting a daughter who was, it seems from the proof, while .physically well and able to take care of herself, mentally she is not up to the average; and therefore the father was concerned as to her welfare, and had reason to provide for her future in any disposition that he might make of his property. After his wife died, the plaintiff, who had been married perhaps about a year, went with her husband to live in the home of her father; they lived there some twelve years during which time the plaintiff’s husband managed and had charge of the farm upon which the old gentleman lived, and which is the same property that is here in controversy. During the series of years that the plaintiff and her husband lived with the old gentleman there were changes made in the arrangements and contract as to the occupancy of the premises; the last change that was made, it ivas agreed that Mr. Kime was to pay the old gentleman fifty dollars a year as rent. In the year 1898, by reason of the failing health of Mrs. Kime, the plaintiff, they were unable to longer continue to live under the arrangement that had been made theretofore, and she became unable to longer take care of her father and render him the assistance necessary for his comfort.

It does not appear from the evidence that there was any trouble between the father and daughter, but by reason of her physical inability to longer discharge the duties they had assumed, they voluntarily left the place.

The old gentleman was unwilling, or at least did not wish that his daughter should leave, but desired they should remain on the place and discharge the duties they had assumed. When they were about to leave, and before they did so, the old gentleman and Mr. Kime went to the defendant, a brother of plaintiff who was living at that time some fourteen miles away from where the old gentleman resided, and their mission was to see if he would move upon the farm and take charge of his father and farm the place. If such arrangements could not be effected with the son, the defendant, the old gentleman had in mind and intended to select some stranger to live with him and manage the farm. But when his wishes were made known to the defendant he promptly and willingly said he would move on the farm, live with his father and take care of him, all of which he did.

To this time, and up to this point in the history of the case, there is no evidence that the defendant ever sought this position. It was not a position that he was seeking; he had no object or purpose in moving on the place whereby he could secure influence over his father, but when he found his sister and brother- . in-law were about to leave he was willing to go and assume the obligations of looking after the wants of his father and manage the farm rather than have a stranger do so.

Soon after the defendant had moved with his family on the farm the old gentleman called his attention to the condition of the farm; that it needed repairs and there would have to be some expenditure of money on the farm in order that it be useful and serve the purpose for which he desired, namely, to secure for himself a comfortable home, care and support.

The old gentleman wanted defendant to make needed repairs; the defendant informed him that he would not, as he didn’t desire to put his money into the farm unless it was secured in some way. The old gentleman then proposed he would make him a deed, provided the defendant would enter into a contract with him agreeing to take care of his father, furnish him the necessaries of life, and all that his condition required; and furnish a home and the necessaries of life for his daughter, Mary Ellen, who was living with her father, and pay all the debts then owing by the old gentleman.

The proposal made was accepted by defendant, and in consideration thereof the deed in question was executed and delivered, and the defendant executed a writing which is equivalent to a life estate in this property in favor of the father as long as he lived, and also in favor of the daughter, Mary Ellen, as long as she lives.

Some discussion occurred between the father and the son as to who should do this business or get up the necessary papers. The old gentleman selected a friend, an acquaintance that he had, who lived some distance from his home; but at the time the papers were to be executed the weather was unfavorable, and a suggestion was made by the defendant that another friend and acquaintance of his father, who lived more convenient than the first, might be secured if satisfactory to his father. The other person suggested was a justice of the peace by the name of Van Buskirk, who was accordingly selected. He was sent for, the defendant going for him; a circumstance that may be considered in cases of this character, where a beneficiary of a conveyance is instrumental or an active agent in bringing it about, is a circumstance that may be properly noticed in connection with the whole transaction. Mr. Van Buskirk, the justice of the peace, went to the old gentleman’s home, prepared a deed and lease; and they are executed before him as such officer. There is a circumstance that occurred between the officer and the old gentleman I will call particular notice to as bearing upon the two questions: First, as to capacity of the old gentleman, and also upon the question of undue influence, or free agency of the old gentleman in making the deed.

After the papers were prepared the old gentleman had a private conversation with Mr. Van Buskirk, which shows what. was in his mind at that time. After he had executed the deed he said to the justice that he was not certain that he had done just right by Emma, his daughter, but expressed no desire to change what he had done.

This is briefly the history of the transaction that preceded and immediately followed the making of the deed. The question is whether or not, at the time the deed was made, had the old gentleman capacity to comprehend his situation and the business in which he was engaged. It would seem from the circumstances referred to that he unquestionably had in mind the objects of his bounty.

He also had in mind and contemplated the effect that the deed and lease would have upon himself, as well as the objects of his bounty, and he knew the condition of his property; and the testimony shows he secured for himself care and attention during the remainder of his life, the contract, or life lease to himself, and the support of his daughter, Mary, and he had also in mind his other daughter, Emma, the plaintiff, when he said he did not know whether he had done just right by her.

These are circumstances and elements tending to show capacity to make a will; and while we can not take any one ease and say it furnishes a distinct and clear rule, as each ease must largely depend upon its own surroundings and circumstances, yet there are some general principles that apply and are applicable to all cases of this character, and among them is the rule that the degree of mental capacity to make a contract or will is that one who is capable of comprehending the condition of his property, and his relations to those who are the natural objects of his bounty, and is able to collect and retain in mind, without prompting, the elements of his business, possesses capacity to make a testamentary disposition of his property.

It is not expected that men, when they become advanced in years, retain the same mental powers that they possessed when young; that can not be expected, and the law does not contemplate such conditions; if that were required it would be impossible for a large proportion of men to dispose of their property in the latter part of their lives when such dispositions are usually made. A person’s memory may be impaired, his body weak and feeble; he may not be able to labor, or do business as when young; he may ask foolish questions, repeat questions and conversations, and, in the language of some of the books, he may not be always able to recognize his neighbors and friends; yet that does not determine whether he has capacity to transact ordinary business, or such business as we have here under consideration. And we further recognize the rule, that to make a contract requires more ability than to make a will, for the reason, in a contract there are two parties and their interests are antagonistic; hence the rule is that it requires more capacity to make a contract than a will. Yet there is another principle not to be overlooked, and that is that a deed often is, in a sense, testamentary in its nature, and when such is the case the act is to be tested by the degree of capacity required to make a will. We think in this case the deed is of a testamentary nature.

The old gentleman, at the time he made this deed, had reached a point in life that it was necessary for him to make some disposition or change as to his property; that is, his property must furnish him support, and he needed some one to take charge and care for him, and his property must be the means for furnishing support, care and attention. The favored daughter, the plaintiff, was the one no doubt he desired should live with him during the remainder of his life, but she was unable to discharge that duty and left him alone, and he had tc look elsewhere for some one who was able and willing to discharge that duty.

Coming more directly to the question of his merLtal capacity, and believing the rule does not require that high degree of capacity that a man’s memory must be just as perfect as it ever was, or that his physical ability as good as it was in former years, but that he may be enfeebled in mind and body so that he- will not be able to fully, at all times, comprehend his situation or surroundings, and at times forget his neighbors and friends, those with whom he was well acquainted in former years, nevertheless when it comes to a question of capacity to dispose of his property, a subject upon which he may have reflected much when in full vigor of mind and body, these failures of memory and infirmities of age are not sufficient to overcome the principle that he has a right to dispose of his property, if he is competent and able to comprehend his situation, the purposes and objects of the business in which he is engaged and recognizes and knows the objects of his bounty, and the condition of his property.

If this is a correct test of capacity we think there is no evidence whatever in this case to show that this old gentleman, when this deed was made, had reached a condition of mental weakness that incapacitated him from making the disposition of his property that he did make to his son, the defendant.

Second. Was there undue influence? As a general rule fraud and undue influence must be proved by him who alleges them, but they may, in certain cases, be inferred from circumstances, as in the execution of a deed where the grantor was partially incapacitated by mental infirmity, or was subject to the controlling influence of the grantee, if it appears that the deed was without valuable consideration, or that the grantee acquired an undue advantage by its execution. Under such circumstances the burden is upon the' grantee to show affirmatively that the grantor clearly understood the nature and effect of the transaction, and voluntarily executed the instrument.

The evidence in this case fails to show any of these conditions or circumstances, unless it be- that the grantor, William Addlesperger, at the time he had made the deed in question, was mentally and physically infirm; and from the relation between the grantor and grantee, that of father and son, the burden is cast upon the defendant, the grantee, to show that the grantor clearly understood the nature and effect of the transaction, and that he voluntarily executed the deed.

Whenever the relation between the contracting parties appear to be of such a character as to render it certain that they do not deal on terms of equality, but that either on the one side from superior knowledge of the matter derived from a fiduciary relation, or from overmastering influence, or on the other from weakness, dependence, or trust justifiably reposed, unfair advantage in a transaction is rendered probable, then the burden is shifted, the transaction is presumed void, and it is incumbent upon the stronger party to show affirmatively that no deception was practiced, no undue influence was used, and that all was fair, open, voluntary and well understood. This doctrine is well settled, but there is often great difficulty in applying it to particular cases.

The law presumes in the case of guardian and ward, trustee and cestui que tmst, attorney and client, and perhaps physician and patient, from the relation of the parties itself, that their situation is unequal and of the character defined; and that relation appearing itself throws the burden upon the trustee, guardian or attorney of showing the fairness of his dealings. But while the doctrine is without doubt to be extended in many other relations of trust, confidence or inequality, the trust and confidence or the superiority on one side and weakness on the other, must be proved in each of these cases; the law does not presume them from the fact that one party is father and old, and the other a son and young. The question as to parties so situated is a question of fact dependent upon the circumstances in each case. There is no presumption of inequality either way from the relationship shown in this case.

It can not be said that from the fact the defendant lived on the farm with his father under the contract of life lease and cared for him, paid his debts, furnished support for the daughter, Mary Ellen, as provided for in the lease, or at the time the defendant went to live with his father, that the father needed some one to take charge of his farm, and care and provide for himself and his said daughter, or that at the time he was old, forgetful, and in conversations would- dwell on events of his early life and did not engage actively in any business, and, on the other hand, the defendant, his son, lived in the same house, going there at the solicitation of his father and the son-in-law, Kime, taken separately or together raiso a conclusive presumption of law that their situation was unequal and fiduciary. These relations, as matter of fact, may have led to or been consistent with controlling influence on the part of his son or weakness and confidence on the part of the father, but this was to be shown, and is not necessarily presumed from the relations themselves, as in the case of. trustee, guardian or attorney.

There is not a particle of evidence that the old gentleman,, after this deed was made, ever complained about it, or that the defendant did not faithfully perform the contract on his part. There was no secrecy about the execution of the deed; it was placed on record without delay; no effort to conceal the transaction from the plaintiff or any one interested in the grantor or his estate.

We find as a fact that there was no undue influence used by was the free and voluntary act of the grantor. It was contended that there was not a sufficient consideration for the land conveyed, and, therefore, the deed is fraudulent and should be set aside. The fact that the deed was made to the son of the grantor is a circumstance to be considered in connection with the sufficiency of the consideration. If the old gentleman had mental capacity sufficient to transact ordinary business, and was free from restraint and undue influence, he had a right to make such disposition of his property as he thought proper:

A father has a right to dispose of his estate in any way he may deem best. He is not required to make an equitable distribution of his estate, among even the objects of his bounty. He may, if he choose, exclude his children, or' divide his estate among them unequally. The question in all cases is, was the act the free act of a competent party?

On the other hand, while a son or daughter has no legal demand upon the parent as to how he will distribute his property, yet courts of equity will not vacate a deed obtained by means of influence or importunity unless it has been unduly or improperly exercised. Fair argument and persuasion, or appeal to the conscience or sense of duty of the- grantor, especially by those having claims upon his justice or his bounty, if fairly made, lay no foundation for- vacating a. deed, although the grantor would not have executed it but for such appeal, argument or persuasion. Truman v. Lore, 14 Ohio St., 144-156.

The defendant in the case at bar assumed to pay the debts of his father, the amount of which was uncertain; he was to furnish his father with support, care and attention as long as he lived, and a home and maintenance for his sister Mary so long as she lives. The extent of any one or all of these assumed burdens on the part of defendant was uncertain; he was to furnish his father with support, care and attention as long as he lived, and a home and maintenance for his sister Mary so long as she lives. The extent of any one or all of these assumed burdens on the part of defendant was uncertain, and will continue so long as Mary lives, yet the defendant assumed them and secured the faithful performance thereof, by executing an instrument in writing, called a life lease, to his father and sister, which are a lien upon the farm as much so as if he had executed a mortgage. There is no pretense or claim made by plaintiff that defendant has not faithfully carried out his part of the contract so far as the father was concerned, and the sister, although a party to this action, makes no complaint that he is not doing the same so far as she is concerned.

F. O. Levering and W. D. Matthews, for plaintiff.

L. K. Powell and J. W. Barry, 'for defendant.

We think under these circumstances there is not such want of consideration as to be evidence of or raise any presumption of undue influence against the defendant.

This case is clearly distinguishable from the cases cited by counsel for plaintiff, not only as to the facts, but as to the application of the law to the facts.

In the case of Tracey v. Sacket, 1 Ohio St., 54 (59 Am. Dec., 610), the grantee was a stranger to the grantor. He failed ignominiously in carrying out the contract he had entered into with the grantor.

In the case of Allore v. Jewell, 94 U. S., 506, the grantee was a stranger to the grantor. The grantor was an old lady of great mental weakness and the consideration was grossly inadequate.

The case of Corbit v. Corbit, 4 Bull., 1006. The facts in that case are so materially different from the facts in the case at bar it can hardly be considered an authority in this case. The principles of law there announced are correct, and when the .facts warrant, their application should be controlling.

We have gone over the main features of this case; and it will be observed we have confined ourselves largely to circumstances, rather than a repetition of the testimony of witnesses, in which there is much conflict. Lawyers know that in cases of this character and upon such issues, conflict in the evidence is naturally expected. Witnesses, non-experts, come in and give their opinions, and it is pretty difficult to arrive at a conclusion that will harmonize with all the evidence: the transaction itself and the circumstances must furnish the rule for the solution of the question. Courts are not expected to make wills or contracts for parties if they have capacity to make them and are free from undue influence.

When the plaintiff’s father recalled to his mind the fact whether he had done just what he ought to have done for her, he did not see proper to change his arrangements, therefore the court can not change it for him. The decree will be for the defendant; the plaintiff’s petition dismissed.


text:
    CONTRACTS FOR. PUBLIC WORK.
    [Circuit Court of Franklin County.]
    The State of Ohio, ex rel Edward L. Taylor, Jr., Prosecuting Attorney, Franklin County, Ohio, v. Nathan B. Abbot et al, Trustees, et al.
    Decided, February, 1904.

      Public Contracts — WorJc Must be Awarded XJnder the Plans and Specifications Advertised — With Equal Opportunity to All Bidders— Test as to What Specifications Mean — Is the Manner in Which They were Understood by Bidders — Laches—On Part of the State in Questioning Validity of Contract — Injunction.
    1. A contract for the construction of a public building is illegal and void, where the plans and specifications upon which it was awarded were not those which the board caused to be prepared and advertised, were not responsive to the invitation to bid, and did not give other bidders the same opportunity to bid that was enjoyed by the contractor to whom the work was awarded.
    2. The test to be applied in determining the meaning of plans and specifications in connection with public bidding is the meaning derived therefrom by bidders and contractors familiar with the language employed.
    3. Authority to invite alternate bids would not authorize the acceptance of any alternative hid, submitted on condition that if certain parts of the building are omitted, or other changes made, not provided for in the specifications upon which the building was invited, the bidder will construct the building for the sum stated in his hid.
    4. The state is without the facilities for the discovery of fraud or irregularities in matters of public work which are open to individuals with reference to their own affairs, and a court of equity, applying the rule of laches according to its own ideas of right and justice, will recognize this fact where a claim of laches is made against the state.
    Sullivan, J.; Summers, J., and Wilson, J., concur.
    Heard on appeal.
   This action is brought to perpetually enjoin the trustees above named, as trustees of the memorial association of Franklin county, Ohio, from carrying out or completing a contract entered into by them as such trustees on the 7th of November, 1903, with their co-defendant, W. Ii. Ellis & Company, a firm doing business as general conractors under that name; also to perpetually enjoin said firm, their agents, employes, sub-contractors, etc., from carrying out or completing said contract, or doing any act or thing toward the completion of the same, and that the auditor of the county be enjoined from issuing any vouchers to said Ellis ■& Co., upon said contract, and that the treasurer of the county be enjoined from paying out any money out of the funds in his hands to said Ellis & Co. under said contract.

It is claimed by the plaintiff through its representative, the prosecuting attorney of Franklin county, that the contract entered into as above stated and which it assails, is an illegal and void contract and in contravention of the laws of Ohio, because it- is a contract for the construction of a memorial building under an act of the Legislature passed March 12, 1902 (Vol. of Laws 95, pages 41, 42, 43, 44), entitled an act “To provide for the construction and maintenance of a county memorial building to commemorate the' services of the soldiers, sailors, marines and pioneers of the several counties of the state,” and said contract is not based upon any detailed plan, specifications, forms of bids, and estimates of cost theretofore adopted by said trustees. By Section 6 of said act the board of trustees are authorized to employ architects, and Section 8 gives the board power to prepare, or cause to be prepared, plans and specifications, and to make contracts for the construction of a memorial building for the purposes specified in the act within the amount authorized. In making the contract authorized by this section the board are to be governed by the provisions of the several paragraphs that follow and contained in Section 8. The first paragraph provides, “That said contract shall be based upon detailed plans, specifications, forms of bids, and estimates of costs, to be adopted by said board,” and the third paragraph provides, “that no contract shall be let except to the lowest and best bidder, who shall give a preliminary and a final bond conditioned that he will enter into the contract. And paragraph second of said section, that the contract shall be made in writing upon a concurrence of a majority of the board, signed by the president and secretary of the board and the contractor, after an advertisement in two newspapers published and of general circulation in the county for a period of thirty days.”

The plaintiff avers that said board employed Prank Packard as an architect to prepare detailed plans, specifications, estimates of costs, which was done by said architect, and upon the completion of the same the board caused to be advertised in two newspapers and of general circulation in said county for a period of thirty days that it would receive sealed proposals up until 12 o’clock noon, October 31, 1903, for performing the labor, furnishing the material to erect said building according to the plans, descriptions, bills and specifications, prepared by Packard, the architect, to be found on file at the office of the association, Room 1210, New Hayden Block in the city of Columbus, where the same would be open to public inspection between the hours of 8 a. m., and 5 p. m., on all working days during the said period of thirty days. The plans, specifications, etc., prepared by Packard, the architect, and upon which sealed proposals were invited by the above advertisement, contained the following, under the head of supplemental bids and designated as proposition No. 2: “Supplemental bids will also be entertained for constructing the entire building, including all exterior walls, inside partitions, floor construction, girders, columns of Ferro concrete construction or other re-enforced concrete construction. Bids for this class of work, however, must be accompanied by complete specifications and data relative to the methods of constructions, the composition of the concrete, and the method of re-enforcing the same. It is understood that in making a bid for this method of construction, that the inside finish, the general layout of the building, and in fact all work excepting partition walls, floor construction, girders, and columns, are to be the same as described in the within specifications.”

The defendant, Ellis & Co., submitted a bid under this proposition, together with specifications in which they offered to furnish all the material and construct the entire building, walks, driveways, etc., for the sum of $211,305, and in the first paragraph of the specification attached to their bid stated that the same contained certain changes which were necessary in the various branches of the work to enable the said firm to perform the work for the sum stated, whereupon Packard, the architect, prepared supplemental specifications, which in many particulars were based upon the provisions contained in those of Ellis & Co., in which there appears many material changes and omissions of matters contained in the original plans and specifications upon which sealed proposals were invited.

The claim of the contractor, Ellis & Co., is that the omissions and changes contained in the supplemental specifications were necessary to the change from standard to concrete construction, and made for the purpose of economy, the board being fully authorized to do so by law and under the detailed specifications prepared by them, and therefore the- bid was responsive to the invitation, and being a lawful and the lowest and best bid, contract is not illegal and void.

The claim made by the trustees in their answer is substantially the same as made by Ellis & Company.

The changes required by said Ellis & Company, to construct the building, walks, driveways, etc., for the price named consisted of several omissions of parts of the buildings set forth in the original specifications, whilst others consisted in changes in form of constructions, decoration and material — all were to be made, however, for the purpose of enabling Ellis & Company to construct the building, driveways, etc., for the price named in their bid.

The estimated cost alone of the omissions based upon- the statement of Ellis & Company amount to several thousand dollars, the largest item being the sixteen columns, $10,000; ventilating fan, $6,000; and the change from a Scotch marine to the tubular boiler, $2,500. There are other changes and omissions, the items of which are small, but in the aggregate amount to at least $2,000. The difference in change of material and in .inside finish from cabinet to first-class carpentry and joiner’s work, under the testimony produced by plaintiff, would be large, and as it is stated in the first paragraph of the specifications submitted by Ellis & Company with their bid, that the changes suggested were necessary to enable them to construct the building, driveways, etc., for the sum stated; and it must necessarily follow that all changes, except those necessary to construct the building of Ferro concrete, were made because the material proposed and change in finish in place of those set forth in the original specifications cost less money.

The specifications submitted by Ellis & Company as to these changes and omissions were adopted by the board, and the contract assailed by plaintiff entered into immediately upon their adoption.

Under the provisions of the original plans and specifications inviting bids for Ferro concrete construction, we think it clear that persons submitting bids under it were not authorized to include in the specifications required to accompany the bid any omissions or changes from the original plans and specifications, except such as were necessary to that method of construction. The invitation to bid under proposition No. 2 of supplemental bids explicitly states that such bids will be entertained for constructing the entire building including all exterior walls, inside partitions, floor construction, girders, columns, etc., of Ferro concrete construction. The columns are not to be omitted, but instead of being constructed out of the material provided in the original specifications concrete may be used.

The entire proposition should be construed together, so that the exception found in the second paragraph of the proposition relates simply to the material that was to be used in the construction of the inside partitions, floors, girders, columns, etc. The inside finish could not be changed, except perhaps where a change to Ferro concrete construction required it. But the inside finish, general lay-out of the building, was to be the same as provided in the original plans and specifications. Upon the claim of the defendant, that under the exception contained in . proposition No. 2 the omissions, changes in material and finish named in the specifications furnished by Ellis & Company could be made and in that respect adopted by the board, plaintiff called several witnesses who follow the business of contracting for the construction of buildings .of this character, and whose testimony showed they had had large experience, several of whom inspected the original plans and specifications with a view of submitting bids, and this testimony was uniform, that in the exception the omissions provided for in the supplemental specifications were not included and not necessary in the adoption of the Ferro concrete construction. They submitted no bid upon either method of construction, for the reason that having personal knowledge as to the amount of funds the trustees had on hand to expend for the purpose, they knew the building, by either method, could not be constructed for that amount upon the plans and specifications upon which they were invited to bid. It is not what the trustees or the architect may have understood proposition No. 2 including the exception to mean, but how it was understood by contractors familiar with the language employed. Pease v. Ryan, 7 C. C. R., p. 50.

In the proposition no reference is made to the exhaust fan or any change from a Scotch marine to the tubular boiler, though they constitute large items in the omissions, and the testimony shows that concrete construction would not require the omission of either.

It is true that it is shown that the tubular boiler will perhaps answer the purpose intended fully as well as the Scotch marine, but there is no provisions in the original specifications that a bid might be made for a tubular boiler.

There are other changes and omissions, but a sufficient number and cost of same have been mentioned to sustain the conclusion reached and hereinafter stated. Whether these omissions or changes were such as did change any essential part of the building, or if constructed as provided by the supplemental specifications, there would be. in all the essential parts, substantially the same kind of a building as provided for by the original specifications, we think not material. The question is were the specifications upon which bids were invited in such form and expressed in such words as those to whom the invitation was extended could understand, that each bidder submitting a bid under proposition No. 2 could in the specifications accompanying his bid require the changes and omissions set forth in the bid of Ellis & Co., or that any such changes and omissions were permissible.

In view of proposition No. 2, as stated, and the testimony produced by plaintiff already referred to, we are of the opinion they were not permissible, and therefore the specifications upon which the contract with Ellis & Company was made were not those upon which competitive bids were asked.

The authority of the trustees to invite alternative bids being conceded, does the statute, by which all the authority they have is conferred, authorize them to accept any alternative bid, submitted on conditions that if they will omit certain parts from the building, and changes in finish, etc., that were not contemplated or intended, nor provided for anywhere in the specifications upon which competitive bidding was invited, that the bidder will construct the building, etc., for the sum stated in his bid? If so, then the trustees are authorized to enter into a contract without any reference to the plans and specifications upon which sealed proposals have been made, and the bidder who could succeed in getting in the greatest number of omissions and changes would be the successful one if the changes and omissions made his bid the lowest.

If plans and specifications are to be adopted by the board after all bids are in, then paragraph 3 of Section 8 is of no force. Section 6 authorized the board to employ an architect, and as contracts for construction can only be based upon detailed plans and specifications, forms of bids and estimates of costs, it is apparent for what purpose his employment is authorized. And as the contract for construction can be based alone upon detailed plans and specifications, and as provided by paragraph 3 of Section 8 that no contract shall be let except to the lowest bidder who shall give bond, etc., it is clear we think that the Legislature intended to and did provide the same safeguards to be found in other statutes pertaining to like matters, with the view to secure the benefit and advantage of fair and just competition between bidders, and at the same time close every avenue to favoritism and fraud and to insure the accomplishment of the work at the lowest price by subjecting the contract for it to public competition.

There is no fraud or bad faith charged in this case, and the evidence clearly shows that the trustees as well as the contractor have proceeded in good faith and with no intentional wrongdoing, but it also shows that the contract entered into with Ellis & Co. is clearly in contravention of the statute under which they were acting, and therefore void.

The contractor and the trustees could reasonably be expected to be governed by the understanding the architect might have as to any provision of the specifications prepared by him, but this would not avail either, if such understanding was different from that of contractors invited to bid familiar with the language employed. -

It is claimed further by the contractor, and also by the trustees, that the delay upon the part of the prosecuting attorney in bringing the action was unexcusable; that as a result of such unexcusable delay the contractor had incurred large expenses in the necessary preparation for the prosecution of the work, by moving to the site of the building at a large expense the apparatus to be used, bringing material upon the ground, entering into contracts for material to a large extent, the execution of the bond required and procuring the required sureties thereon, so that if the prayer of plaintiff’s petition should be granted the contractor would sustain serious loss; that being in a court of equity, notwithstanding the fact that the contract was illegal and void, yet in view of the foregoing, the court, looking to the equities of the parties, should “remain passive and do nothing in the premises.”

A court of equity applies the rule of laches according to its own ideas of right and justice.

The state has necessarily to depend upon its representatives and agents in matters of a public nature, and when the interests of the public are materially injured, by illegal proceedings, whether by fraud or otherwise, it can not have the facilities of discovery where simply individuals are interested and affected, and courts of equity have recognized this fact in the doctrine of laches.

If during the period necessary to enable the state through its representatives to prepare its action, to avoid and prevent a wrong to the public and protect it against loss, a contractor who has obtained an illegal contract out of which the injury arises, proceeds as it is claimed was done here, and thereby the state is estopped from preventing the injury and loss, and the public must submit, then it may be said that in almost every case,, when the state and the public are interested the doctrine of laches would apply. The claim of laches here we think is not sustained.

The further claim is made that if the prayer of the petition is granted, that no benefit will result to the public, or if any should result, it would be very little and so trifling that a court of equity should not extend its aid. -If the prayer is granted the only additional expense made apparent by. the facts disclosed will be the advertisement for bids upon the detailed plans, specifications, etc., as modified. This will insure the competition required by the law. Upon the testimony produced it is shown that an opportunity will be afforded of determining whether the building, etc., upon such modified plans and specifications can not be built for very much less than the bid upon which the centract was awarded, saving to the memorial fund several thousand dollars.

There is testimony in the ease, worthy of belief, showing that under the supplemental specifications upon which this contract was awarded, this building, with the walks, driveways, etc., can be built for $190,000, and at a profit to the contractor. Here is a difference of $21,000 which can not be regarded as a trifling sum.

It is further claimed that if the prayer is granted that it might result in the ultimate defeat of the building; whilst this is a claim wholly immaterial, and one not proper for the court to consider under the issues made, yet we are unable to see why such a result should follow, when the relief it granted will save several thousand dollars to the fund provided for the purpose, and at the same time enable the trustees to proceed according to the statute.

The contract entered into between the trustees and Ellis & Company is illegal and void, because the plans and specifications upon which it was awarded were not those caused to be prepared by the board, and upon which bidders were invited to bid, and hence not responsive to the invitation, plans and specifications; other bidders not having the opportunity to bid for the contract awarded Ellis & Co., it therefore follows that plaintiff is entitled to the relief prayed for in its petition, and the same is granted.

E. L. Taylor, Jr., and Chas. J. Pretzman, for paintiff.

J. E. Safer, for W. H. Ellis & Co.

Pugh & Stoddart, for trustees.


text:
    PROSECUTION UNDER. THE BEAL LAW.
    [Circuit Court of Belmont County.]
    Arthur Stewart v. The State of Ohio.
    Decided, December Term, 1903.

      Sale of Intoxicating Liquor — Affidavit—Necessary Elements in, for Selling Contrary to Law.

    An affidavit filed before a mayor for the sale of intoxicating liquor contrary to law, under the Beal Local Option Law, Section 4364-20?), Revised Statutes, should set forth the name of the party to whom the intoxicating liquor was sold, or that the name was unknown; but an objection to the affidavit on that ground must be pleaded before final trial in the mayor’s court, or the same is waived.
    Cook, J.; Laubie, J., and Burrows, J., concur.
    Error to Court of Common Pleas of Belmont County.
   Plaintiff in error asks for the reversal of the judgments below upon one ground only, and that is that the affidavit upon which he was convicted was not sufficient in law.

The affidavit was filed before the Mayor of the Village of Barnesville, this county, and charged the defendant, Stewart, with selling intoxicating liquor contrary to Section 4364-206, Revised Statutes, known as the “Beal Act.” The affidavit was for the unlawful selling under the section, and not for keeping a place for the unlawful sale of intoxicating liquors.

The defendant was found guilty by the mayor and sentenced to pay a fine of two hundred dollars and costs, it being his first offense. Error was prosecuted to the common pleas court and the judgment of the mayor affirmed, and the ease is before this court to reverse the judgment of the lower courts.

The objection to the affidavit is that it does not state the party to whom the liquor was sold, neither does it set forth that the name of the party was unknown to affiant.

The affidavit not setting forth that the defendant had been convicted before under this section of the statute, the mayor had final jurisdiction, and the affidavit should therefore be substantially as formal in charging the offense as an indictment found by a grand jury.

We think the affidavit should have set forth the name of the party to whom the intoxicating liquor was alleged to have been sold. The accused was entitled to demand that the affidavit made against him should inform him of the nature of the charge specifically and definitely, so that he might precisely know what the charge was and be prepared to make his defense. He should not be required to meet a charge of selling to A, B, or C, or some other person, when the particular person was known to the affiant.

Furthermore, the affidavit should be so definite that there would be no difficulty, in case of another action for the same offense, in pleading former acquittal or conviction. It is true it might be shown upon the trial of another action who the party was to whom the sale was made by introducing the evidence adduced in the former action, but that would be attended with much difficulty, and, in some eases, impossible. Our Supreme Court has pronounced in no uncertain terms, and properly so, on the necessity of definiteness in criminal accusations for both these reasons.

We are aware that recent text writers on criminal proceedings take a decided position that it is not necessary to set forth the name of the party to whom the intoxicating liquor is sold, and they are supported by the decisions of many very creditable courts (McClain on Criminal Law, Volume 2, Section 1274), but we think the better authorities are the other way.

The statutes of our state, by inference at least, indicate that it is necessary to set forth the name of the party. Section 7222 provides that in an indictment for the sale of intoxicating liquor it shall not be necessary to allege the kind of liquor sold, nor to describe the place where sold; and in an indictment for keeping’ a place where intoxicating liquors are sold in violation of law it shall not be necessary to allege .the name of the person to whom intoxicating liquor was sold. This is almost equivalent to saying that for a sale it would be necessary to allege the name of the person.

In Gordon v. State, 46 O. S., 625, it is said:

“There was a motion to quash the indictment on the ground that it did not set forth the name or names of any person or persons to whom the sale of intoxicating liquors was made. The indictment alleged that the accused unlawfully sold intoxicating liquors as a beverage, to divers persons whose names to the jurors were unknown. This we deem sufficient. In those cases in which the names of third persons can not be ascertained they may be thus designated in the usual form as 'persons whose names are to the jurors unknown.’ ”

In Commonwealth v. Dean, 21 Pickering, 334, it was. held upon a motion to quash that:

“A complaint before a justice of the peace, intended to be the basis of a final judgment, alleging that the defendant, without license, ‘did sell spirituous and fermented liquors in a shop used for the purpose of tippling or gaming or in which tippling and gaming is allowed,’ is fatally defective, inasmuch as it did not state to whom the sale was made, or that it was made to a person unknown.”

The accused, plaintiff in error, went to trial without making any objection to the affidavit on this ground. He filed a motion to quash the affidavit — two of them — but for entirely different reasons; that the act was unconstitutional, etc.; but there was nothing in the motions indicating that he objected because the name of the party to whom the liquor was sold was not set out in the affidavit. After judgment he made no complaint, either in the motion for a new trial which he filed, or by motion for arrest of judgment. Will he now be permitted to complain for the first time in a proceeding in error? We think not. He can not experiment with a trial, and when the judgment is against him, then take advantage of a defect of this character. The defect is a matter of form in stating the offense, and while it would be fatal as against a motion before trial, we think that after judgment it is unimportant; at least, the defendant waived the defect. Had the defect been in an indictment, he must have raised it by motion to quash, or it would have been waived. R. S., Section 2249.

Colpitts & Chappell, for plaintiff in error.

Smith & Howard, for defendant in error.

Such is the direct holding of the Supreme Court of Massachusetts in the case of Green v. Commonwealth, 111 Mass., 417.

The judgment of the court of common pleas in affirming the judgment of the mayor’s court is affirmed.


text:
    POLICE AND FIRE CHIEFS.
    [Circuit Court of Butler County.]
    State of Ohio, on the Relation of Jacob Sipp, v. Charles A. Stroble.
    Decided, February 2, 1904.

      New Municipal Code — Its Provisions With Reference to Chiefs of Police and Fire Departments — Identity of an Office — To Be Determined 5y Its Functions — A Superintendent of Police Under a City Charter Becomes Chief of Police Under the New Code — Chief of Fire Department.

    1. The office of superintendent of police under the recent charter of the city of Hamilton has the same functions as the office of chief of police provided for under the Municipal Code of 1902, and is therefore identical, and being identical the occupant of the office of superintendent of police on the day the new code went into effect became, by virtue of Section 167 of that code, the chief of police of the city of Hamilton.
    2. The same principle applies to the chief of the fire department of the city of Hamilton.
    Jelke, J.; Giffen, J., and Swing, J., concur.
   We have had no trouble in coming to a conclusion that the charges filed with the mayor against the relator were insufficient and that the trial under the same was void and of no effect in law.

We are further satisfied that the appointment of C. A. Stroble was contrary to law, Section 149 of the Municipal Code providing “The Chief of Police shall be appointed from the classified list of such department,” because on the 15th day of August, 1903, the classified list as required by. Section 153 in the Municipal Code had not been made up and established, and if it had, C. A. Stroble could not have legally been on it as he had neither passed an examination nor been a member of the police department prior to May 1, 1903, the time when the new code went into effect.

The only real difficulty is to determine the official status of Jacob Sipp, the relator herein, between May 1, 1903, the day when the new Municipal Code went into effect, and August 15, 1903, the day of the appointment of the said C. A. Stroble, and said Sipp’s right under Revised Statutes 6764 to maintain this action. Prior to May 1, on April 28, 1903, Jacob Sipp was duly appointed to the office known as “superintendent of police” as provided by Section 18 of the then existing charter of the city of Hamilton, created by an act of the General Assembly passed March 25, 1898.

Section 149 of the new Municipal Code provides that:

“The police department of each city shall be composed of a ‘chief of police’ and such inspectors, captains, lieutenants, sergeants, corporals, detectives, patrolmen, and other police court officers, station-house keepers, drivers, and substitutes as shall have been provided by ordinance or resolution of council. ’ ’

The cardinal question is whether or not the office of “superintendent of police” created under the charter is identical with the office of “chief of police” provided in the new code. If the office is identical, since the same permits of but one incumbent, then Mr. Sipp became by virtue of the new code, going into effect under Section 167, the chief of police of Hamilton. The case of Kirker v. Cincinnati, in the 48th O. S., page 507, is instructive on this point in distinguishing the case of Reemelin et al v. Mosby, 47 O. S., page 570:

“ It is argued that the separate character of the two boards is recognized in Reemelin et al v. Mosby, 47 Ohio St., 570. This may seem so from the second clause of the syllabus. But no such question was involved, nor considered or necessary to be considered, in that case. It is true that the members of the new board are there referred to as members of another board. In one sense this is true, in another it is not. With regard to the personnel, a change in the membership makes another board, but with regard to its functions, the board remains the same so long as its functions remain unchanged

Here the court points out, that, under the general law, where the issue is as to the validity of their acts, the identity of two boards is to be determined by the identity of their functions, no matter what j;he respective names of such boards may be and regardless of the persons composing them. But here the general law is further modified by the express civil service provisions of the Municipal Code as to the police department, which provisions concern themselves particularly with the personnel of the office.

These provisions graft onto the law of the organization of the police department the principle of retaining in office those duly appointed to office. Section 167 provides:

“No officer or employe in the department of public safety shall be removed or discharged except for cause; and the cause of removal of any person shall be forthwith stated in writing by the mayor to the board, and shall be filed by the said board in its office, and shall be open to public inspection. No officer, secretary, clerk, sergeant, patrolman, fireman or other employe serving in the police or fire departments of any city of the state at the time this act goes into effect shall be removed or reduced in rank or pay except in accordance with the provisions of this act.”

In the ease at bar we find a substantial identity in the functions of the offices of superintendent of police under the old charter and of chief of police under the new code. We further find explicit statutory direction that the organization of the police department under the new code is to be made to fit so far as possible the conditions existing under the old charter for the purpose of preserving the personnel of the department and the standing of the persons composing it. In this way only can Section 167 be given dne effect. It would be impossible in any other way to keep Jacob Sipp on the force without reducing him in rank, as required by this section. Hence we are of opinion that on and after May 1, 1903, Jacob Sipp was under the law chief of police of the city of Hamilton.

M. 0. Burns, Judge Neilan and Ellis G. Kinkead, for the relator.

Richard Shepherd and Warren Gard, contra.

No matter what the Supreme Court might now hold as to the constitutionality of the act of March 25, 1898, the decision of the Supreme Court in State, ex rel Attorney-General, v. McMaken, 59 O. S., 731, gave sufficient color of law to make Jacob Sipp a cle facto officer on May 1, 1903. We are sustained in this view by what was evidently the view of the mayor and board of public safety at the time when they instituted proceedings against said Sipp. The idea that he could have sustained any other relation to the police department was only .invented after the complete illegality and vanity of the proceedings against him became obvious.

We are therefore of opinion that a judgment of ouster should issue against C. A. Stroble and of re-instatement of Jacob Sipp.


author: Per Curiam.

text:
    State of Ohio, ex rel Adam Becker, v. David Lingler.
   Per Curiam.

The principles recognized in the foregoing case are equally applicable to this case and lead to a similar conclusion.

A judgment will issue herein against David Lingler ousting him from the office of chief of the fire department and of reinstatement of Adam Becker to said office.


text:
    PRIORITY OF LIENS.
    The Caldwell Building & Loan Association v. Bigley et al.
    [Circuit Court of Noble County.]
    Decided, December Term, 1903.

      When Lien of Reformed Mortgage Commences.

    Where an action is commenced by the mortgagor against the mortgagee, upon an imperfectly executed recorded mortgage, for the purpose of having the same reformed and for sale of the premises.

      Held: That judgment liens, obtained after the commencement of the action and before decree reforming the mortgage, do not have a preference over the mortgage lien, and that the claim of the mortgagor should ’be first satisfied out of the fund arising from the sale of the property.
    Cook, J.; Laubie, J., and Burrows, J., concur.
    Appeal from Court of Common Pleas of Noble County.
   On the 14th day of January, 1902, the defendant, J. N. Bigley, contracted with the plaintiff, The Caldwell Building & Loan Association, for a loan of one thousand dollars. On the same day he delivered to plaintiff a bond and mortgage purporting to be signed by himself and wife in the presence of two witnesses and duly acknowledged for such loan, and the money was paid over to him. As a fact Bigley was the only one that signed the bond and mortgage, he having forged the name of his wife and the two witnesses to the mortgage, as also the name of the notary public to the acknowledgment, and fraudulently caused the seal of the notary to be attached. The mortgage was left for record with the recorder of the county the same day it was received, January 14th, 1902. The defendant, Daniel Swiekard, on the 23d day of July, 1902, obtained a judgment before the Mayor of the Village of Caldwell against the defendant, Bigley, and on the same day filed a transcript with the Clerk of the Court of Common Pleas of Noble County; caused an execution to be immediately issued from said court, and on the same day it was duly levied upon the real estate described in the mortgage given to pláintiff. Alonzo Hall, another defendant, on November 20, 1902, recovered a judgment by consideration of the Court of Common Pleas of Noble County against the defendant, 'J. N. Bigley, which was on the same day levied upon the same property. On September 16, 1902, the defendant, Emily Baker, obtained a judgment before the same court of common pleas against the defendant, Bigley, which was on the same day levied upon the same property. July 28, 1902, the plaintiff, building and loan association, filed a petition in the Court of Common Pleas of Noble County on its mortgage to foreclose the same and for equitable relief, setting forth that the bond and mortgage was duly signed by the defendant, J. N. Bigley, and purported to be signed by his wife and two witnesses and to be duly acknowledged. After the levying of the executions as hereinbefore stated, the plaintiff filed an amended petition making said parties defendants to the action, setting forth in detail the facts in relation to the mortgage as to the forgeries and asking that it might be reformed; decreed to be a contract for a mortgage, or an equitable lien; also that the premises might be sold as prayed for in the original petition and the proceeds applied to the payment of its claim in preference to all others. To this petition all of said defendants answered claiming that their liens were superior to plaintiffs. The property was sold by consent of all parties, the proceeds brought into the court of common pleas and the question to be determined is as to the priority of the liens. The property did not sell for more than sufficient to pay the claim of plaintiff, and if the claims of defendants, or any of them, are superior in equity to its claim, the same will not be wholly satisfied.

It must be conceded that the mortgage of plaintiff was wholly ineffectual as a lien against third parties. It being neither executed or acknowledged in accordance with the statute its record was illegal and gave it no priority as against subsequent execution creditors (R. S., 4133, Bloom et al v. Noggle et al, 4 O. S., 45). At the same time it was good as between the parties as a mortgage or a contract for a mortgage giving the mortgagee a lien upon the property as between the mortgagor and mortgagee. Bloom et al v. Noggle et al, supra; Van Thornley v. Peters et al, 26 O. S., 471. The question then arises, what is the legal effect of the plaintiff commencing its action to enforce its lien upon the property against the defendant, J. N. Bigley, who was the owner of the property? The action was not in personam in any sense but in rem; it was not for the purpose of obtaining a judgment or other relief against the defendant, but only that its mortgage might be perfected and foreclosed, or that the contract of Bigley might be specifically enforced by the sale of the property to pay the claim of plaintiff. It is conceded, as it must be, that the mortgage might be divested of the fraud perpetrated by Bigley upon the association and be reformed so as to make it comport with the true contract made by the parties; but it is insisted that the action has no effect as to third parties, until such reformation takes effect by the decree of the court made in the action and the judgments and levies having been obtained before such decree that the defendants have the prior lien.

In support of this position the decisions of Bloom et al v. Noggle et al, supra, and Van Thornley v. Peters et al, supra, are invoked.

In the latter case it is held:

“A defective mortgage when reformed will not affect the lien of a judgment rendered between the date of the execution and the reformation of the mortgage.”

In the opinion Mcllvaine, J., says:

“1. A mortgage defectively executed is not entitled to record under our registry laws. 2. An unrecorded mortgage, or a defectively executed mortgage, whether recorded or not, does not vest in the mortgagee any interest in the premises, either legal or equitable, as against subsequent purchasers, or judgment creditors of the mortgagor. 3. As between the parties to such mortgage, whether it be duly executed and not recorded, or defectively executed and recorded or not, equity will give it effect, aeording to the intention of the parties. 4. A defective mortgage, when reformed, will not affect the lien of a judg-1 ment intervening between the date of the execution and the reformation. ’ ’

Not only in this ease, but in a number of others of the same character decided by the Supreme Court, the' language used is “when reformed,” but it will be observed that in all the cases in which the language is so used the liens of the third parties attached before the commencement of the action by the party holding the defective mortgage for the enforcement of his lien. Certainly such holding can not affect the provision of Section 5052 of the Revised Statutes.

By that section it is provided:

“When summons has been issued, or the publication made, the action is pending so as to charge third persons with notice of its pendency; and, while pending, no interest can be acquired by third persons in the subject of the action as against the plaintiff’s title.”

The provision is, “While pending no interest can be acquired by third persons in the subject of the action as against the plaintiff’s title.” The recovery of a judgment and levying of execution was the acquiring of an interest in the subject of the action against the title of the plaintiff, although that title may have been defective.

In Tollerton v. Williams, 30 O. S., 579, it is held:

“If a petition for divorce and alimony by the wife, specifically describes certain real estate of the husband, charging- it with equities of the wife, and asking an injunction to prevent alienation pendente lite, and also equitable relief, and the decree therein is such a,s that from it, it may be found that the court acted on those equities and favorably thereto, the proceeding operates as a lis pendens, and the. decree for alimony and settling equities will be a lien on the lánds, preferable to that of a mortgagee who had actual notice of the proceedings for divorce and .alimony, and whose mortgage was executed and recorded, pending those proceedings.”

No injunction was granted in the action. Neither did the court in the decree find that there were any equities in favor of the wife except what arose out of the marital relation — the responsibility of the husband for the maintenance and support of the wife.

Wright, J., in the opinion says:

“But again in the divorce suit, this land was specifically described, an equity in it was claimed, an injunction asked to prevent the husband from disposing of it pendente lite, of all
of which Tollerton had notice when he took his mortgage, and in the decree the alimony was fastened upon the land.
“In the ease of Hamlins Lessee v. Bevans, 7 Ohio (pt. 1), 161, which was a question of priority between judgments and a decree for alimony, the court say: When the object of a suit, in law or equity, is to recover specifically a described piece of real estate, the pendency of the suit is held to be notice to all the world of the claim, and a final judgment or decree in his favor over-reaches intermediate purchases — that is, purchases made pending the suit. So if the suit be against a trustee to affect his title to land as trustee, and a final decree be rendered to t-hat effect, the land is bound from the service of process.
“In that case the court observe that the petition for divorc' alleged no claim to any specific tract of land. It is said that a purchase from a defendant in a bill to enforce an equitable right of any kind will not confer a valid title. White v. Tudor, 2 Leading Cases in Equity, (pt. 1), 192.
“In the case before us the property is described so that any who chose to inquire might find out precisely what it is.
“In addition to the wife’s equity her alimony is sought to be charged upon it, and an injunction is asked to prevent any alienation.. If that injunction had been allowed, it would not have been any further notice than the mere filing of. the petition to Tollerton, the mortgagee. The notice of injunction would not have been served upon him, but upon the husband. These facts, it appears to us, make such a case that the mortgage must be considered as having been made pendente lite, and that it is a lien inferior to the decree.”

In the original case as stated no injunction was granted.' The court made no finding or entered any decree upon the claimed equities of the wife. The petition simply described the land and the decree was for five thousand dollars in gross as alimony and charged the same as a lien upon the land described in the petition; and yet upon petition filed to marshal liens and sell the land the court held as we have seen that the claim for alimony took preference over a valid mortgage obtained during the pendency of the suit under the equitable doctrine of lis pendens.

The ease of Barry v. Hovey et al, 30 O. S. Rep., 344, was much like the ease before us.

The principal controversy was between two mortgagees holding mortgages from the same mortgagor upon the same real estate. Robert Barry held tbe first mortgage and it was first recorded, bnt had but one subscribing witness. The mortgage to John Barry was given after the mortgage to Robert Barry, and was duly executed and recorded, but was secured after the suit had been instituted by Robert Barry to reform and correct his mortgage, in which action a defective service of summons had been made. The syllabus of the case is as follows:

“In an action by a mortgagee against a mortgagor, to reform and correct a mistake in a recorded mortgage which had but one attesting witness, a summons was duly issued to the sheriff, who, without writing endorsed thereon, as required by Section 61 of the Civil Code, appointed one C to serve the same as required by law, and verified his return which was endorsed on the writ. Held: That such service and return by C, without being duly authorized by an appointment in writing endorsed on the writ, is not such a service as will charge third persons with notice of the pendency of an action as provided in Section 78 of the Civil Code.”

Johnson, J., in the opinion says:

“The mortgage to Robert Barry, though first entered for record, having but one witness, was defectively executed, and did not, as against a subsequent valid mortgage entered for record, vest any interest either legal or equitable in the mortgagee. Bloom v. Noggle, 4 O. S., 45.”

It follows therefore that the mortgage to John M. Barry, which was executed December 28th and entered for record December 30th, is paramount to that of Robert Barry, unless the proceedings instituted by him December 21st, 1872, to reform and correct his mortgage, which subsequently ripened into a decree to that effect, restores him to that priority to which he would have been entitled if his mortgage had not been defective.

The court below held that the proceedings by Robert Barry to correct his mortgage were Us pendens by the service made December 26, 1872, as amended at the June Term, 1873, so as to charge John M. Barry with notice of its pendency.

By the terms of the statute John M. Barry’s mortgage took effect December 30th. At that date the petition had been filed, and summons issued and returned to the clerk’s office showing that it had been served in the proper manner by one John H. Camden, bnt showing no authority in him to make such service. The service was directed to the sheriff, but it had no appointment endorsed on it which would authorize Camden to serve it.

This presents the question whether a service made by a private person, under a verbal appointment, or one not endorsed on the writ, is such service as to make the ease a pending action as to third persons, and if not, whether the amended return cures the defective service.

The Code, Section 78, provides that: "When the summons has been served or publication made, the action is pending so as to charge third persons with notice of its pendency, and while pending, no interest can be acquired by third persons in the subject matter thereof as against the plaintiff’s title, “in this case the plaintiff’s title was an equitable one. If his action was pending, by virtue of the service made by Camden on the 26th day of December, then there is no error in this judgment, otherwise there is, unless the amended return cures the defect.”

The learned judge then proceeds to show that the action was not commenced at the time John M. Barry took his mortgage and had the same recorded, by reason of the defective service of summons, and that the return could not be amended in the manner attempted after decree.

It would seem as if this case was conclusive upon the question. That after service of summons duly made and returned that no interest could be acquired by a third person in the subject matter of the action as against plaintiff’s claim, and there is no question but that in this action summons was duly issued, served and returned before any interest was obtained by the execution creditors.

From these authorities it seems to us that what is said in the first paragraph of the syllabus of Van Thornley v. Peters et al with reference to the reformation of the instrument, has reference to the action for reformation and was in no way intended to qualify the generally accepted interpretation of Section 78 of the Code of Civil Procedure, now 5052 of the Revised Statutes.

McGinis & Dye, for plaintiff.

Spriggs, Kountz, Morris <f- Frazier, for defendants.

Another question is made and that is that the amended petition not being filed until the judgment creditor’s liens attached that no rights were acquired under Section 5052.

As we have stated the original petition was to secure plaintiff’s rights in the real estate, which was specifically described. The object was to have its equities in the same determined. The amended petition was for practically the same purpose. There was no departure. The facts were simply set out more in detail and in no manner changed the cause of action.

In the case of Lessee of Stoddard v. Meyers, 8 Ohio R., 203, the syllabus reads:

“Judgment reversed pending a bill to subject land to satisfy it, and again recovered, the bill being continued, and a supplemental bill being filed to reach the case of the second judgment, an alienation after the reversal and before the second recovery, is affected by the Us pendens.”

In the opinion Lane, J.,, says:

“The general rule that no alienation of property is permitted whilst a suit is pending in relation to it, either in law or equity, is familiar and well settled (3 Ohio, 542; 5 Ohio, 462). It is assumed that when the right to recover, in the bill in equity, was taken away by the reversal of the judgment, the suit ceased to be pending so far as to bind the property. "We are not satisfied that this position is a sound one. No such distinction is to be found in the books. But the doctrine seems plain that by the institution of a suit the subject of litigation is placed beyond the parties to it; that whilst the suit continues in court it holds the property to respond to the final judgment or decree. This suit instituted in 1831 was regularly continued until the final decree in 1835. The supplemental bill was engrafted into the original bill, and became identified with it. The whole was a Us pendens, effectually preventing an intermediate alienation. ’ ’

It follows that the decree must be that the claim of defendant, Daniel Swickard, be first paid out of the fund after payment of costs, and the balance not being sufficient to pay the plaintiff’s claims in full, that residue be paid over to it.

Decree accordingly.