text:
    LOCAL OPTION LAW — BEAL ACT CONSTITUTIONAL — KEEPING PLACE AND SELLING DISTINCT OFFENSES.
    [Mahoning (7th) Circuit Court,
    March Term, 1905].
    Cook, Burrows and Laubie, JJ.
    Ernest Dominick v. State of Ohio.
    1. Jurisdiction or Mayor to Hear and Determine Misdemeanors.
    The mayor of the city" of Youngstown has jurisdiction to hear and. finally determine misdemeanors notwithstanding the act of April 26, 1904 (97 O. L. 623) where no imprisonment is part of the penalty, and of such character is a charge under- Lan. R. L. 7273 (R. S. 4364-20a) for the first offense.
    2. Swankey an Intoxicating Liquor under the Statute.
    The trial court having determined that a malt liquor is intoxicating, the judgment of such court will not be reversed unless such judgment is manifestly against the weight of the evidence, and in the case of a malt liquor known as swankey it does not so manifestly appear, but on the contrary it clearly appears in this case that such malt liquor is an intoxicating liquor, under the statute.
    Error to Mahoning common pleas court.
    E. N. Brown, for plaintiff in error.
    C. A. Manchester, W. R. Graham and B. P. Doty, for defendant in error:

      Scienter. State v. Bippeth, 71 Ohio St. 85; State v. Kelly, 54 Ohio St. 166 [43 N. E. Rep. 163]; Altschul v. State, 4 Circ. Dec. 402 (8 R. 214); 11 Ene. PI. & Pr. 535; Myer v. State, 6 Circ. Dec. 477 (10 R. 226); Bissman v. State, 6 Circ. Dec. 712 (9 R. 714) ; State v. Somerville, 3 Dec. 422 (1 N. P. 422) ; State y. Fromer, 6 Dec. 374 (7 N. P. 172).
    The defendant was shown to be the keeper of a place. Schultz v. State, 32 Ohio St. 276, 281; Hatch y. Kenny, 141 Mass. 171 [5 N. E. Rep. 527]; 17 Am. & Eng. Ene. Law (2 ed.) 369; Lan. R. L. 10400 (R. S. 6804).
    The acquittal before the mayor of Struthers of the charge of selling intoxicating liquors is no bar tó a prosecution for keeping a place, although the same sale may be used in evidence in both cases. Clark, Cr. Law 397; Commonwealth v. Hogan, 97 Mass. 122; Commonwealth v. Cutler, 91 Mass. (9 Allen) 486; Commonwealth v. Bubser, 80 Mass. (14 G-ray) 83; Commonwealth v. Brelsford, 161 Mass; 61 [36 N. E. Rep. 677] ; Miller v. State, 3 Ohio St. 475.
    Mere arraignment and pleading not guilty before a magistrate is not a jeopardy, although not a jury case. Trial must be actually commenced. Commonwealth v. Bressant, 126 Mass. 246; 14 Cent. Dig. p. 948, See. 289; p. 1272, Sec. 670; State v. Hodgkins, 42 N. H. 474; Bice v. Dewey, 80 Mass. (14 Gray) 47.
    Defendant was not entitled to a jury trial for the reason that imprisonment was no part of the penalty. Carey v. State, 70 Ohio St. 121, 122 [70 N. E. Rep. 955] ; Inwood v. State, 42 Ohio St. 186; Fletcher v. State, 7 Cire. Dec. 316 (18 R. 674) ; Maride v. Akron (Town Council), 14 Ohio 586; Cincinnati v. Steinkamp, 54 Ohio St. 284 [43 N. E. Rep. 490]; 21 Am. &’Eng. Enc. Law (1 ed.) 965.
    The mayor had jurisdiction to try this case. State v. Anderson, 44 Ohio St. 247 [6 N. E. Rep. 571],
    This question can be collaterally raised. Mechem, Pub. Off. Sees. 326, 327; Norton v. Shelby Co. 118 U. S. 425 [6 Sup. Ct. Rep. 1121; 30 L. Ed. 178],
   COOK, J.

Ernest Dominick, plaintiff in error, was tried and convicted by the mayor of the city of Youngstown for the offense of keeping a place for the sale of intoxicating liquors in the village of Struthers, this county, such municipality being a local option village under Lan. R. L. 7273, 7274 and 7275 (R. S. 4364-20a, 4364-20b and 4364-20c), known as the Beal law, fined $100 and costs and ordered committed until fine and costs were paid.

The common pleas court affirmed the judgment and sentence of the mayor, and error is now prosecuted in this court to reverse the judgment of both courts.

The evidence shows that the accused had a regularly fitted-up barroom at which he sold a malt liquor known as swankey.

Several grounds of error are assigned and relied upon for the reversal of the judgments below: That the law is unconstitutional for the reason that it gives the magistrate final jurisdiction in the action. As a fine is the only penalty under the section under which the accused was convicted it is unnecessary to consider that question further than to say that it has been so often determined by the courts in this state, and especially in regard to this particular act, that it must be considered as fully settled that the act of the general assembly is not only constitutional but that mayors generally under the act have jurisdiction to finally determine cases arising under the act and fine the accused.

Again, it is claimed that the affidavit under which he was tried should have averred and the state should have proven that the accused knew that the liquor which he had for sale was intoxicating. We think not. Where one sells liquor as a beverage he is presumed to know whether it is intoxicating or not. If it is, he sells at his peril.

Again, it is claimed the mayor of Youngstown had no jurisdiction for the reason that it has a police court. Without entering upon a discussion of the question whether or not the act creating a police court for the city of Youngstown is unconstitutional for the reason that it is a special act conferring corporate powers upon the municipality of Youngstown, it is sufficient to say that the act did not deprive the mayor of final jurisdiction in this case, first, for the reason that under the act the police court of said city had only jurisdiction for misdemeanors committed within the corporate limits and, were it Qtherwise, yet it seems to us that under Lan. R. L. 3348 and 3349 (R. S. 1816 and 1817; B. 1536-776 and 1536-777) of the municipal code the mayor would have jurisdiction. These sections provide:

Laning R. L. 3348 (R. S. 1816; B. 1536-776). “In cities, other than those which have a police court, the mayor shall have final jurisdiction to hear and determine any prosecution for the violation of an ordinance of the corporation, unless imprisonment is prescribed as part of the punishment.”

Laning R. L. 3349 (R. S. 1817; B. 1536-777). “He shall have final jurisdiction to hear and determine any prosecution for a misdemeanor, unless the accused is, by the constitution, entitled to a trial by jury; and his jurisdiction in such cases shall be coextensive with the county.”

That the- commission of an offense under the Beal law is a misdemeanor is conceded, but it is said that these two sections were originally embraced in one and the evident intention was to confer exclusive jurisdiction upon police courts in all cases of misdemeanor. We are not impressed with that argument. It would not seem that the intention of the legislature was to deprive mayors of their jurisdiction to hear and determine misdemeanors when imprisonment is not part of the penalty.

In Lan. R. L. 3348 (R. S. 1816; B. 1536-776) the mayor is specially deprived of jurisdiction under an ordinance in eases therein prescribed and by Lan. R. L. 3349 (R. S. 1817; B. 1536-777) he is given jurisdiction in misdemeanors where the party is not entitled to trial by jury under the constitution.

The eases are entirely dissimilar and the history of the legislation upon this subject sustains this view. We therefore would not be inclined to hold, even independent of the restricted powers of the police court for the city of Youngstown, that the mayor had not such jurisdiction; but however that may be, we have no doubt that, under the act (97 O. L. 623), creating a police court for the city of Youngstown, the mayor had such jurisdiction.

It will be observed that this act is classified as a local law and possibly should be construed as such. It does not provide for a police court but a criminal court, a court new to our general legislation. The first section, as we have said, distinctly restricts its jurisdiction in misdemeanors to the limits of the city, and as we think could not by any process of reasoning be construed as intending to deprive the mayor of his jurisdiction in misdemeanors outside of the city limits, even if Lan. R. L. 3349 (R. S. 1817; B. 1536-777) should be construed as defendant claims it should be.

It is again insisted that the accused had been acquitted by the mayor of Struthers for the same offense. That question need not be considered as the bill of exceptions does not purport to set out all the evidence, but, waiving that, the claim is not tenable. Keeping a place for the sale of intoxicating liquors and the sale of the same are distinct offenses under the section. Whoever shall keep a place for the sale of intoxicating liquors; and whoever sells intoxicating liquors shall be guilty of a violation of the statute. Miller v. State, 3 Ohio St. 475; and other authorities cited by counsel for the state. Moreover in this case the sales relied upon by the state for the purpose of showing that the accused was guilty of “keeping a place” were entirely different and distinct from the sale which he was charged with making before the mayor of Struthers. Lastly it is said that the liquor which Dominick, sold was not intoxicating. Like the last assignment this question is not before us for the reason that the bill of exceptions does not purport to contain all the evidence; but we have read the evidence and we think that the finding and judgment of the trial court is not only not against the weight of the evidence but is clearly supported by the evidence. True there was the evidence of the expert chemist sent by the brewer at Chicago who manufactures swankey which would tend to show that it does not contain sufficient alcohol to intoxicate without' very large quantities were used. To offset this was the chemist’s for the state who testified that it contained a considerable quantity of alcohol.

Which of these hired experts was more worthy of belief, if they should be believed at all, was peculiarly a question for the trial court. Then there were witnesses — true they were detectives employed by the anti-saloon league — who testified that one or two glasses would make you sensible of its effects and that four or five glasses would make you quite drunk, showing that it was equally as strong as lager beer for intoxicating purposes, either from alcohol or a much worse ingredient.

Further we should take into consideration that Dominick had a room for the almost exclusive sale of swankey. Wby did he have such place in a local option village? What would the people want with swankey if it did not intoxicate and how would it pay to keep a room for its sale if it would produce no different effect from soda water or other soft drinks? These so-called malt drinks are not sold as a beverage for their taste but for their effect and they are used for that purpose.

When the citizens have decided they do not want any intoxicating liquors sold in a certain district, there is no excuse for attempting to violate the law by artifice of this character — better by far to have open saloons for the sale of ordinary liquors.

We see no error in the record and the judgment is affirmed.

Burrows and Laubie, JJ., concur.


source: Caselaw Access Project

author: HAYNES, J.

license: Public Domain

text:
    CONTRACT — PRINCIPAL AND AGENT.
    [Lucas (6th) Circuit Court,
    March 28, 1905.]
    Hull, Haynes and Parker, JJ,
    Archibald M. Bowman v. Louis E. Hartman et al.
    1. Agent to Procure Purchaser for Property Performs Contract, when; Entitled to Commission, when.
    A person who enters into a contract with the owner of real estate whereby he agrees to procure a purchaser for the property, hut is not to conduct the negotiations therefor, and is to receive for his services a certain commission based upon the price for which the property is sold, fully performs his contract by introducing a purchaser; and his right to compensation is not destroyed merely because the negotiations between the parties extended over a period of several months, and during such period there was a cessation of negotiations, it not appearing that the negotiations were declared off, and new negotiations subsequently taken up between tbe parties independent of the original introduction hy the agent.
    2. Agent Entitled to Commission although Modifications Made in Contract.
    Where, in such case, the parties to the sale carry on negotiations themselves and make modifications in the contract from that originally contemplated by the owner and the agent, and a sale is made, under the modifications, in pursuance of the original introduction of the parties hy the agent and resulting from it, the agent is entitled to his commission according to the amount of property that is sold, notwithstanding it is less than was contemplated at the time the agent was employed.
    Error to Lucas common pleas court.
    Doyle, Lewis & Schaufelberger, for plaintiff in error.
    Frank O’Farrell and fi. C. Webster, for defendant in error.
   HAYNES, J.

This case comes before us upon petition in error.

It appears from the pleadings and evidence in the case, that in May, 1903, the defendants in error were the owners of certain property situate in Wood county, and perhaps also in Sandusky county, used for the production of oil on which were located in the neighborhood of one hundred oil wells. The plaintiff in error was at that time employed in this city about the offices connected with the Buckeye Pipe Line Company; was familiar with oil matters and oil men to a large extent, and at or about this date he had some conversation with the defendants in regard to the furnishing to them of a purchaser for their oil property and that conversation resulted in an agreement whereby Bowman was to furnish a purchaser for the oil property and the defendants agreed to pay Bowman therefor a commission of 3 per cent upon the amount for which the property should be sold. Subsequently the property was sold —but not all of it — there being -a certain number of wells omitted from the sale. By the terms of the understanding between the parties at the time this agreement was made, the plaintiff was only to produce a purchaser ; the property was to be shown by the defendants and they were to make the contract of sale. No price was named to Bowman for which the property was to be sold, no statement made with regard to that; he had nothing to do but to produce a purchaser and introduce him to the defendants, who were to carry forward their own negotiations.

The case came on for trial in the court of common pleas; was heard upon the evidence of the plaintiff and at thé conclusion of plaintiff’s testimony, the court directed a verdict for the defendants; and this is the error that is complained of, mainly, it being claimed that the evidence was of such a nature that the case should have gone to the jury. It was claimed in the arguments before us that there had been certain negotiations carried on about May and soon after that time, for several 'days, and that afterwards the trade — as was claimed on behalf of defendants — was declared, “off,” or ended. On the other; hand it was stated that there was a cessation of negotiations, which cessation continued perhaps until September,, when the matter was resumed and the sale was concluded. There was testimony also tending to show that during this negotiation in May, Hartman and the purchaser, Ulsh, came to Mr. Bowman and said that they had nearly agreed upon a price for the sale of the property, the offer on one side being perhaps $111,000 or $112,000, and on the other side perhaps $107,000, there being $4,000 or $5,000 between the parties, and they said that his commissions would amount to a considerable sum of money and that stood in the way of a consummation of the sale, and they asked him to make a reduction and he agreed upon an amount of reduction of his commission, if the sale was carried through, of some $2,500.

On the trial of the case in the court below the defendant offered certain testimony which the court refused to allow to go to the jury. There were quite a number of questions which were asked in regard to certain things which were done by Mr. Bowman in the way of procuring charts of this land, marking the property and matters of that kind —as to what he did in the way of giving information to Mr. Ulsh in regard to the property. Now, in regard to all of these matters — and I speak of them as a whole — we see no reason why they might not properly be admitted; indeed, we think if we were hearing the case, we should have allowed the testimony to go to the jury. But, at the same time, the contract as alleged by the plaintiff stands admitted by these defendants —it was not necessary to prove the contract, and the question in dispute is whether or not the contract has been performed and whether the plaintiff has done so much that he is entitled to recover under it. We think these questions were not material to the issue. They might give a little larger view to the court and- jury as to the position of the parties in the case, but, after all, if the plaintiff recovers it will not be upon a statement of those facts but upon the fact that he had made a contract which was definite in its terms and capable of being understood, so that as to that evidence and whatever other points there are of evidence which were refused, or even admitted, we think, upon a careful survey of the record, there was no reversible error in the action of the .court, although, if the court had permitted it to come in, we think it would have been very proper.

Now, as I have said, the court, at the conclusion of the plaintiff’s testimony, directed a verdict for the defendants. In the statement which was made by the court in the nature of a, charge to the jury, giving its reasons for so doing, it appears that the principal ground at least upon which it based its action was, that the contract was a contract for the sale of the whole of the property, or the production of a purchaser who would buy the whole of the property, and that inasmuch as some sixteen or seventeen wells had been left out of the final conclusion of the bargain and not included in the sale, that therefore the plaintiff had not performed the contract — that the contract had not been performed and the plaintiff was not in a position to recover. Now, as I have stated, the testimony shows that there was a cessation of 'these negotiations, but there was testimony offered on the part of the plaintiff that it was simply a cessation: I think the plaintiff inquired of him and was told by the purchaser that it was a cessation and that it was to be resumed again, at any rate, it was resumed and was carried out in the manner stated.

Now it should be remembered in this case that the contract was, •that plaintiff was simply to introduce a purchaser. The plaintiff was not expected to carry forward any of the negotiations; that was left to the parties themselves; they preferring to do that. They fixed their own price; they fixed the amount of property that they would sell him in the contract; the general agreement was, that plaintiff should produce a person who would negotiate for the purchase and he did produce such a person and the negotiations were entered into, and carried on, for a length of time and he finally revised the amount of his commission in case it was carried out, but the cessation occurred and then the negotiations were resumed.

Now we think there is evidence to show that this contract was never dropped; that these negotiations were never terminated; that the plaintiff was never notified in any manner or form that the trade was off or the negotiations ended; we think it still remained, and although the negotiations were not perfected in a day, nor even in a month, still we think there was evidence tending to show that these negotiations were still pending and were resumed and carried on in pursuance of •the original negotiations which had been had and that the plaintiff was instrumental in introducing this purchaser to these parties and that the trade was consummated in pursuance of, and as a result of, that introduction.

A further point was made in the court below; that there had not been a sale of the whole property; that there had been a portion of the property left out in the final sale, and there was a citation of authorities. The ease has been argued before, us and counsel for the plaintiff in error has furnished us a brief with a very full citation of authorities and a great many of them in regard to this very question, and we think he shows that the law is well established that, where the parties carry on the negotiations themselves and make modifications in the contract, but still make a sale in pursuance of the original introduction of the parties and resulting from it, that the party is entitled to recover his commissions according to the amount, of property that is sold.

Now, entertaining those views, and upon this statement and upon these authorities, we are of the opinion that the court of common pleas erred in directing a verdict by the jury and that the case should have been submitted to the jury upon the evidence in the case and the law as contained in the charge of the court.

The question of the amount of damages to be recovered, is not before us and there is nothing here that we need to discuss; that is a matter which may arise during the trial of the ease, to be decided by the court. The judgment of the court of common pleas will therefore be reversed, the verdict set aside and the ease will be remanded to the court for a new trial and other proceedings according to law.

Hull and Parker, JJ., concur.


author: WINCH, J.

text:
    INSURANCE — FIRE.
    [Cuyahoga (8th) Circuit Court,
    February 20, 1905.]
    Marvin, Winch ana Henry, JJ.
    T. F. Walsh & Co. v. Queen Ins. Co. of America.
    Removal of Goods Insured Defeats Recovery Notwithstanding Agent Promised to See Proper Entries Made.
    Where goods insured “while located and contained as described herein, and not otherwise” under a standard form policy, are removed to another location without the written consent of the company to such removal indorsed upon the policy, there can be no recovery under the policy for loss by fire sustained after such removal, notwithstanding the insured notified the agent of the company of the proposed removal and the agent said he would attend to the matter and see that the proper entries were made so that the Insurance would be preserved. Ohio Farmers Ins. Go. v. Bur get, 9 Circ. Dec. 369 (17 R. 619) distinguished.
    Error to Cuyahoga common pleas court.
    J. P. Dawley and F. A. Beecher, for plaintiff in error.
    Kline, Tolies & Goff, for defendant in error.
   WINCH, J.

Plaintiff in error brought his action in the common pleas court against defendant in error to recover for a total loss by fire under a policy of insurance issued to him by the defendant company.

The petition sets forth that on March 19, 1901, he was the owner of a certain stock of merchandise located in the building No. 399 Ontario street, Cleveland, Ohio; that on said day in consideration of the premium paid by plaintiff the defendant company insured plaintiff for one year against loss or damage by fire to the amount of $500 on said property; that on or about August 7, 1901, by permission of defendant and with its full knowledge and consent, plaintiff removed said merchandise so insured, from 399 Ontario street to 373 Ontario street; that no change was thereby made increasing said risk without the consent of defendant, nor was there any fraud, intentional or constructive, on the part of the plaintiff in the removal of said goods; that on February 18, 1902, all of said insured property was totally destroyed by fire, of which plaintiff gave defendant notice and filed written proof of loss; that plaintiff complied with all the conditions of said policy, but defendant refuses to pay, etc.

The answer of the company admitting plaintiff’s ownership of the property, the issuing of the policy, payment of premium, removal of the property, its destruction by fire and defendant’s refusal to pay, also contains a denial of all other averments in the petition.

The second defense of the answer is as follows:

“For a second defense to the petition herein, defendant says that said contract of insurance entered into between defendant and T. F. Walsh & Co., on or about said March 19,. 1901, among other things contained the following provisions, to wit:
“Queen Insurance Company of America, in consideration of $6.25 premium, does insure T. F. Walsh & Co. for the term of one year from March 19, 1901, at noon, to March 19, 1902, at noon, to an amount not exceeding $500, to the following described property while located and contained as described herein, and not elsewhere, to wit:
“ ‘T. F. Walsh & Co. $500. On stock of merchandise, consisting principally of butter, eggs, cheese and other dairy products, dishes, china, glassware, store and office furniture and fixtures, including cooler, iron safe, scales, coffee mill, stoves, awning and other goods not more hazardous; all while contained in or attached to the three story brick, gravel roof building, occupied for store and dwelling purposes, situate No. 399 Ontario street, Cleveland, Ohio.-’
“ ‘Other insurance permitted without notice until required. Gasoline stove permit attached; ’ and the further provision:
“This policy is made and accepted subject to the foregoing stipulations and conditions, together with such other provisions, agreements, or conditions as may bé endorsed hereon or added hereto, and no officer, agent or other representative of this company shall have power to waive any provision or condition of this policy except such as by the terms of this policy may be the subject of agreement indorsed hereon or added hereto, and as to such provisions and conditions no officer, agent, or representative shall have such power or be deemed or held to have waived such provisions or conditions unless such waiver, if any, shall be written upon or attached hereto, nor shall any privilege or permission affecting the insurance under this policy exist or be claimed by the insured unless so written or attached.”
“Defendant further says that said T. F. Walsh & Co., on or about August 7, 1901, removed the merchandise and property covered by said contract of insurance from the premises at No. 399 Ontario street, the location of the property as named in said contract of insurance, to premises No. 373 Ontario street, contrary to the provisions of said contract, and without the consent or knowledge of this defendant; that no agreement or consent to such change of location of said property was written or indorsed upon or attached to said contract; that by reason thereof said contract of insurance has become and is null, void and of no effect.”

Other defenses are pleaded in the answer, but it is not necessary to consider them here.

A reply filed by plaintiff admits the terms of the policy pleaded in the answer, and further avers:

“That prior to the removal of the subject of said contract of insurance from 399 Ontario street to 373 Ontario street the plaintiff for the purpose of complying in all respects with the provisions of said contract of insurance, started to go to the office of defendant’s agent in the city of Cleveland, Ohio, for the purpose of having the permission of the said defendant indorsed and written upon his said policy; that, just before reaching the office of said defendant’s agent and representative in Cleveland, he met said agent upon the street and in reply to a question from said- agent stated to said agent that he was intending to remove the subject of said contract of insurance from said location No. 399 Ontario street to No. 373 Ontario street and that he wanted his papers put in proper shape to preserve his insurance; that thereupon said agent took a minute of what he had stated and told him that it was unnecessary for him to go to the office; that he would attend to the matter and see that the proper entries were made so that his insurance would be preserved and that plaintiff need not bother himself any further about it; that he would attend to the matter in proper shape; that acting upon said declarations and statements of said agent of defendant, and relying and believing that said agent of defendant would make the proper entries and preserve his insurance the plaintiff took no further steps in the matter but- went on thereafter and removed the subject of said insurance from their first location to said second location. And the plaintiff says that he was misled by the acts and declarations of said defendant’s agent in the premises, to his injury;'that he acted in good faith and in all things attempted to conform to the requirements of said contract. That by the acts and declarations of said agent he was prevented from taking any further steps in the matter, believing any further action on his part to be unnecessary, and he says that by reason of the said acts and declarations of the defendant’s agent the said defendant is estopped from asserting and claiming that the plaintiff has forfeited his insurance, and he further says that by the acts and declarations of its agent aforesaid the defendant waived a literal compliance with the requirements pleaded by it in its answer.”

With these pleadings the case was called for trial, whereupon the defendant moved for judgment upon the pleadings, which motion was granted and judgment entered for it. This action by the trial court is now in this court for review.

It will be noticed that by the terms of the policy the goods were insured, “while located and contained as described herein, and not otherwise,” and that the policy was of the so-called standard form, providing that no officer or agent shall have power or be deemed to have waived any provision of the policy, nor shall any privilege or permission affecting the insurance exist or be claimed by the insured unless said waiver, privilege or permission be written upon or attached to the policy.

It is conceded that when plaintiff removed his goods to a location not mentioned in the policy, they ceased to be covered by the insurance, unless the company granted him permission to change their location, or assented thereto. It is conceded by the pleadings that no such permission or assent was given plaintiff by any officer or agent of the company, in writing, indorsed upon or attached to the policy. If, in law, an agent of the company could not waive this provision, or by his conduct estop the company from claiming the benefit of it, then the trial court was right in rendering judgment upon the pleadings.

The proposition is hardly an open question in this court. The trial court followed the ruling of this court in the case of Rochester German Ins. Co. v. Mary Baldwin, decided at the May term, 1902, in Lorain county. (Unreported.)

That was a case in which the insured, after the issuing of the policy, conveyed the insured property to his wife. No indorsement of the transfer of the interest was made upon the policy which was in the standard form, providing, “that if there is any change in the title to the property without the consent thereto by the insurance company indorsed on the policy, the contract shall be void,” and “that no agent has authority to waive the conditions of the policy. ’ ’

Loss by fire having occurred, the court held that the wife could, not recover, Hale, J., saying:

“It has been many times held by our Supreme Court that where no restrictions are placed upon the agent, authorized to make contracts and issue policies, he may waive the conditions of the policy requiring written, indorsements thereon of the consent of the company to changes made after it is issued. A waiver by such agent has frequently been sustained and policies enforced which would be void but for such waiver. But where there is a general clause in such policy, and it contains the stipulation, ‘ That no agent has authority to waive the conditions of the policy, ’ the later rulings have been otherwise. ’ ’

The later rulings referred to are: Union Cent. L. Ins. Co. v. Hook, 62 Ohio St. 256 [56 N. E. Rep. 906], a life insurance case; Eureka Fire & Mar. Ins. Co. v. Baldwin, 62 Ohio St. 368 [57 N. E. Rep. 57], a fire insurance case; Travelers’ Ins. Co. v. Myers, 62 Ohio St. 529 [57 N. E. Rep. 458; 49 L. R. A. 760], an accident insurance case; Northern Assur. Co. v. Building Assn. 183 U. S. 308 [22 Sup. Ct. Rep. 133; 46 L. Ed. 213],

Counsel for plaintiff in error have cited to us the case of Ohio Farmers’ Ins. Co. v. Burget, 9 Circ. Dec. 369 (17 R. 619), affirmed by the Supreme Court, without -report, 46 Bull. 225, but an examina- ✓ tion of the policy sued on in that case shows that it was an old-form policy and, while it contained the provision that the policy should become void, unless consent in writing was indorsed upon it, in certain instances, it did not contain a provision limiting the power of the agent to waive conditions, nor the further' limitation that nothing should be construed to be a waiver unless indorsed on the policy. It is unfortunate that the syllabus of that case was not prepared by the court or the judge delivering the opinion, for it goes farther than the facts in the case warrant and states a proposition of law never enunciated by this court nor involved in the case.

We conceive there is no greater merit in the defense of estoppel by - the acts of the agent than in the defense of waiver of the conditions of the policy by him. Indeed there is less merit in it; the strongest estoppel would be his act of express waiver. The two defenses are considered as one in Travelers’ Ins. Co. v. Myers, supra, page 540.

Judgment affirmed.

Marvin and Henry, JJ., concur.


author: MARVIN, J.

text:
    EVIDENCE — ADMISSIONS—JUDGMENTS.
    [Cuyahoga (8th) Circuit Court,
    January 26, 1905.]
    Hale, Marvin and Winch, JJ.
    Wm. C. Scofield v. Excelsior Oil Co.
    What not Sufficient Admission of Fkaud and Collusion.
    Admission by plaintiff, made in a proceeding commenced by one of two defendants, who had no knowledge of the pendency of the action, to set aside the judgment on the ground of fraud and collusion, that he took a default judgment, and that the other defendant purposely refrained from making any answer, or making any defense to the action, but denying all other allegations of the defendant 'seeking to set aside the judgment, is not, alone, equivalent to an admission of fraud and collusion between plaintiff and the codefendant. A fortiori, when the amount of the judgment did not exceed the amount due the plaintiff.
    Appeal from Cuyahoga common pleas court.
    Henderson & Quail, for plaintiff.
    Goulder, Holding & Masten, for defendant. '
   MARVIN, J.

The defendant, Lester A. Cobb, has filed his motion for a new trial in this case, which has been argued to us with earnestness and ability by his counsel and in such wise as to show that counsel feel great confidence in the position that the judgment of'the court is wrong. The matters urged in support of the motion, though not all touched upon in the opinion, were all carefully considered by the court before the judgment was announced, and the members of the court who concurred in that judgment are still of the opinion that the judgment is right.

The point upon which the court has found the greatest difficulty and because of which one member of the court does not concur in the judgment is upon the question of whether the judgment obtained by the plaintiff against the oil company in Another action, during the pend-ency of this suit,' is conclusive upon- the defendant, Cobb. That judgment was obtained without any service being obtained upon Cobb and without his having notice of the suit. If that judgment was obtained by the fraud of the plaintiff or by collusion between him and the oil company or those representing the oil company, it is not conclusive as against Cobb.

The averments of the answer of Cobb to the supplemental petition in reference to the obtaining of such judgment are in part as follows:

“ Plaintiff as the owner of all the stock of said company and defendant, George F. Scofield, purposely and intentionally refrained and omitted to file any answer or make any defense in said cause, and caused and permitted a default judgment to be taken in said action-in the sum of $98,497.21 in furtherance of the collusion and fraud aforesaid; that neither this defendant nor his attorneys were given notice of the bringing of said action, and they had no knowledge thereof or of the judgment in said case until after the filing of the amended and supplemental petition herein in February, 1903, when the term of court at which said judgment was rendered had terminated; that said notice was withheld from them in furtherance of said collusion and fraud, the plaintiff well knowing that he had brought said action and secured said judgment for the intent and purpose of further prosecuting this action against this defendant. Defendant further says that the Excelsior Oil Company had a good and sufficient defense to said action, and that it was not indebted to plaintiff in any amount whatever, all of which plaintiff and George F. Scofield well knew, but that plaintiff and George F. Scofield colluded together.to obtain, and did obtain judgment aforesaid fraudulently by withholding and refusing to make any defense. ’ ’

The admission of the plaintiff in reply to this answer is as follows:

He admits, “That plaintiff purposely refrained from making any answer or making any defense to said action and caused a default judgment to be taken therein in the amount stated by said defendant; that said action was commenced and said judgment secured partly for the purpose of further prosecuting this action against the said defendant, Cobb; but as to all the averments of the said fifth defense not herein admitted, and which are not admissions of the averments of plaintiff’s said amended and supplemental petition, plaintiff says that he denies them and each of them.”

It was urged upon the original hearing and upon the hearing of this motion that this admission upon the part of the plaintiff was an admission of collusion between himself and the Excelsior Oil Company, or between himself and George F. Scofield acting for said oil company. Such is not the legal effect of the admission. It is admitted that he took a default judgment; that he purposely refrained from making any answer, or making any. defense in said action. It is a denial of any collusion between himself and anybody else to secure this judgment.

We come, then,-to the question, Do the facts justify us in holding that this judgment was obtained either by fraud or collusion?

Collusion is defined in 6 Am. & Eng. Enc. Law (2 ed.) 212, as follows:

“ ‘Collusion’ is where two persons, apparently in a hostile position and having conflicting interests, by arrangement do some act in order to injure a third person or deceive a court.”

In Carey v. Railway, 52 Fed. Rep. 671, 675, it is defined as, “An agreement between two or more persons unlawfully to defraud a person of his rights by the forms of law, or to obtain an object forbidden by law.”

“Collusion” is defined by Webster as follows:

“In law, a deceitful arrangement or compact between two or more persons, for the one party to bring an action against the other for some evil purpose, as to defraud a third person of his right; a secret understanding between two parties, who plead or proceed fraudulently against each other, to the prejudice of a third person.”

Bouvier’s Law Dictionary defines collusion as follows:

“Collusion, fraud. An agreement between two or more persons to defraud a person of his rights by the forms of law, or to obtain an object forbidden by law.”

The facts here are, that the plaintiff had obtained the judgment of the court of common pleas and the judgment of this court that the plaintiff was a creditor of the oil company to an amount greatly in excess of the amount prayed for in the action in which it is claimed there was this collusion and fraud. The Supreme Court had reversed those judgments, giving no intimation by such reversal as to there being any error in holding that the plaintiff was a creditor of the oil company to the amount which had been found by the lower courts, but holding that until the insolvency of the oil company was established by a judgment against it and the issuance and return of an execution unsatisfied, the present action could not be maintained.

For the purpose of establishing such insolvency in the way pointed out by the Supreme Court, the action in which collusion is charged was brought. We think that the charge that the bringing of such action without any notice being served upon the defendant, Cobb, should not be characterized as a fraud, and that the fact that the oil company made no defense should not be characterized as eollusion. It was not sought in that action to recover for an amount greater than two courts had already found that the oil company was indebted to the plaintiff, and though it might have been well for the plaintiff to have given notice to the defendant, Cobb, we do not see that the failure to do so constituted a fraud upon him. The plaintiff manifestly expected to obtain no right against Cobb which he did not already have except to have the proper evidence that the oil company was insolvent.

Entertaining these views, the motion for a new trial is overruled.

Hale and Winch, JJ., concur.


text:
    WORK AND LABOR — ASSIGNMENT—EXEMPTIONS.
    [Cuyahoga (8th) Circuit Court,
    January 27, 1905.]
    Hale, Marvin and Winch, JJ.
    Brooks Co. v. D. H. Tolman.
    Exemptions cannot be Claimed in Assigned Wages, etc.
    An assignment of wages or salary to be earned in the future under an existing contract of employment, made for a valuable consideration, is valid and enforeible; and neither the assignor nor his family can claim such money, or any part thereof, as exemptions in lieu of a homestead, as against the rights of the assignee under the assignment.
    Error to Cuyahoga common pleas court.
    Arnold Green, for defendant, cited:
    Benjamin, Sales (1 ed.) Sec. 311, p. 281; Sec. 352, p. 290; Sec. 358, p. 301; See. 359, p. 302; Haynes v. Thompson, 80 Me. 125 [13 Atl. Rep. 276].
    W. E. Patterson, for defendant in error:
    The allegations in defendant’s first defense do not excuse it from paying over the money owing to the assignor to plaintiff. 2 Am. & Eng. Enc. Law (2 ed.) 1031; Gamble v. Carlisle, 6 Dec. 48 (3 N. P. 279).
    The allegations in defendant’s second defense do not constitute an excuse for their not paying plaintiff from the wages of assignor earned or to be earned under the existing employment. Gamble v. Carlisle, 6 Dec. 48 (3 N. P. 279).
    It is no defense that the assignor was removable at will, nor that he was hired for no specified time. 2 Am. & Eng. Law (2 ed.) 1031; Augur v. Belting & Packing Co. 39 Conn. 536; Harrop v. Landers, 45 Conn. 561.
    Validity of such assignments of wages. Kane v. Clough, 36 Mich. 436 [24 Am. Rep. 599]; Buple v. Bindley, 91 Pa. St. 296; East Lewis-burg Lumber, etc., Co. v. Marsh, 91 Pa. St. 96; Metcalf v. Kincaid, 87 Iowa 443 [54 N. "W. Rep. 867; 43 Am. St. Rep. 391]; Haynes v. Thompson, 80 Me. 125 [13 Atl. Rep. 276]; Garland v. Harrington, 51 N. H. 409; State v. Hastings, 15 Wis. 75; Brill v. Tuttle, 81 N. T. 454 [37 Am. Rep. 515],
   MARVIN, J.

This case is here by proceeding in error.

Tolman brought suit against the Brooks Company, alleging that:

“On or about January 3, 1901, D. C. Finneran, for a valuable consideration entered into a written contract with the plaintiff, D. H. Tolman, wherein the said' D. C. Finneran agreed to sell, assign and transfer, and did thereby sell, assign and transfer to this plaintiff all his salary due or to become due to said D. C. Finneran from the Brooks Company for the period of ten years from the date of said instrument, and which salary amounted to $16 per week, and became due and payable on the following dates:” (Then follows dates every week up to January 5, 1902.)
“Said written agreement provided that said D. C. Finneran should collect said money due him from said The Brooks Company when it should become due on the days and dates above specified on condition that he should turn over to said D. H. Tolman the amount of money designated after each and every date on or before the expiration of one day after said date; said written agreement further provided that on the failure of said D. C. Finneran to turn over to said D. H. Tolman. said money as provided, the said right of D. C. Finneran to collect said money should became null and void, and D. H. Tolman should collect, and should have the sole right to collect all the money due or to become due to said D. C. Finneran from said The Brooks Company on the days and dates above specified, and further provided that said D. H. Tolman should apply said money received to the liquidation of an indebtedness due to D. H. Tolman from said D. C. Finneran to the amount of $24, and that the balance of said money so collected from said The Brooks Company, over and'above $24, should be by D. H. Tolman returned to D. C. Finneran. * * #
“This plaintiff says that said D. C. Finneran by five payments of $2 each made between January 12, 1901, and March 12, 1901, did reduce his said indebtedness to said D. H. Tolman to the amount of $14, all of which was on said March 12, 1901, due and payable.
“Plaintiff says that said D. C. Finneran did fail to turn over to said D. H. Tolman, the money due or to become due said D. C. Finneran from the Brooks Company on January 5, 1901, January 12, 1901, January 19, 1901, January 26, 1901, February 2, 1901, February 9, 1901,, February 16, 1901, February 23, 1901, March 2, 1901, March'9, 1901, ■and March 16, 1901, on or before the expiration of one day after said dates, or any time thereafter, and that upon said failure, the right of said D. C. Finneran to collect said money from said The Brooks Company became null and void, and said D. H. Tolman became the rightful and proper party to collect said money under said written agreement.
“This plaintiff says that on March 22, 1901, he did notify the said The Brooks Company of the existence of said agreement and did file on said March 22, 1901, a copy of said agreement with the said The Brooks Company, and demanded from the said The Brooks Company the money dne D. C. Finneran at that time, or to become due on March 23, 1901, and on each seventh day thereafter; said demand of payment was again made on the said March 23, 1901, from the said The Brooks Company, and at various dates since said March 23, 1901. The said The Brooks Company did refuse at all times to pay to said D. H. Tolman, the money due, or to become due, the said D. C. Finneran, from said The Brooks Company, or any part thereof, and does still so refuse to pay. The amount due to said D. C. Finneran from said The Brooks Company, on March 22 and 23, 1901, was the sum of $16, and a like sum of $16 has been due on each and every seventh day since March'23, 1901, from said The Brooks Company to the said D. C. Finneran.
“At the time said written agreement was entered into and the assignment of wages made, to wit: on or about January 3, 1901, the said D. C. Finneran was employed by the said The Brooks Company, and was under a contract of employment with said company. Said D. C. Finneran continued to be employed by said The Brooks Company, and under said contract of employment with said company, at all the times and dates mentioned in this petition, and is still so employed. ’ ’

To this an answer was filed by the Brooks Company, admitting the making of the contract between Tolman and Finneran; that a copy of the contract was received by the defendant on March 22, 1901; that when it received said copy of contract Finneran was íd its employ, but says that he was working by the day at $2.66, but that he was employed only by the’ day a'nd for no definite time. It admits that Finneran failed to turn over to plaintiff his wages at the times specified in the petition, and says that it was owing to Finneran $15 as wages at the time the contract was filed with it, and denies all the other allegations of the petition.

• Then follows a second defense, which reads:

“Said defendant for this its second defense to plaintiff’s petition, makes a part hereof all of the facts and allegations set forth in his first defense as fully as if herein rewritten and in addition thereto says:
“1. That said D. C. Finneran at the time said copy of said agreement was received by it as aforesaid, was and is a resident and citizen of the state of Ohio and a married man and the head and support of a family, consisting of himself, wife and two minor children about three or four years old and not the owner of a homestead, and his wife was not the owner of a homestead, and their entire possessions consisted of household goods not to exceed in value $200, all of which was of necessity used and in use by them in housekeeping and when it became known to them that said copy of said agreement had been mailed to defendant and received as aforesaid each and both of them claimed of defendant said wages as exempt and selected the same and demanded the same of defendant as exempt in lieu of a homestead and said D. C. Finneran directed defendant to disregard said agreement and repudiated the same and countermanded the order to pay said wages to plaintiff and directed payment thereof to his wife.
“2. That said wages aggregating some $15 owing by defendant to said D. C. Finneran were the personal earnings of said D. C. Finneran earned within the two weeks next preceding the mailing of said copy of said agreement to defendant and its receipt thereof as aforesaid and the same were necessary for the support of the family of said D. C. Finneran, and as soon as it became known by D. C. Finneran and his wife that a copy of said agreement had been received by defendant as aforesaid both he and his wife demanded said wages as his personal earnings necessary for the support of his family and exempt by law and said D. C. Finneran ordered and directed defendant to disregard said agreement, repudiated the same, countermanded the order to pay said wages to plaintiff, and directed payment thereof to his wife and this defendant did so. ’ ’

A general demurrer to each of these defenses was filed by the plaintiff. This demurrer was sustained, and the defendant not desiring to plead further, judgment was rendered for the plaintiff, to reverse which the present proceeding is prosecuted.

The question thus presented for determination is, whether there was error in sustaining such demurrer.

On the part of the plaintiff in error it is urged that the contract between Finneran and Tolman was purely executory; that in such a contract title to the thing contracted about does not pass from one party to the other immediately upon the making of the contract, and that therefore such contract does not constitute a sale; that at most it is only a contract to sell, one of the essentials of a sale being a present transfer of the title to the thing sold.

See notes to 4 Benjamin, Sales (7 ed.) Sec. 1.

It is said there could be no present transfer of title to that which at the time of the contract had no existence; that whatever was to become due to Finneran from the Brooks Company was to be earned in the future, and hence could not .have at the date of this contract any present existence. Counsel in argument liken it to a chair which one at his own place of business and from his own material agrees to make for another for an agreed price, and urge that as no chair is in existence when the contract is made, there can be no transfer of title at that time, and hence no sale of the chair. Doubtless, in the case of the chair, until there is a subsequent appropriation, of the chair made, to the contract there would be no sale. Benjamin, Sales Sec. 358.

The argument likening the contract involved in this case to the case of the chair supposed by counsel, however plausible, seems to be entirely overcome by the authorities. Cases involving the exact question presented here have been before the courts in many of the states.

In 2 Am. & Eng. Enc. Law (2 ed.) 1031, this language is used in the text:

“An assignment of wages or salary to be earned under an existing employment, made in good faith and for a valuable consideration, is valid.”

Numerous authorities are cited in support of the text.

In Kane v. Clough, 36 Mich. 436 [24 Am. Rep. 599], the facts are, that on October 16, 1874, one Tucker was employed by the defendants in their organ manufactory, doing piecework but without any definite contract for the continuance of such employment. He was then indebted to his mother, and he executed to her an assignment of all the wages that thereafter might ‘become due to him from his employers. Between that date and December 9 following, $65.50 had become due to him for his labor. This was less than he was owing to his mother. On page 439, it is said, in the opinion:

“It is this sum which is now in dispute; the plaintiffs claiming that the assignment could not reach it, because the moneys were not earned when the assignment was made, and there was no subsisting contract under whieh they were to be earned.
‘ ‘ It has often been decided that a mere possibility is not the subject of assignment. A contingent claim against a foreign country to damages to be recovered by treaty is an illustration. # * * A sale of fish thereafter to be caught passes no title when they are caught. * * * The same is held of a sale of sums to be earned by a physician in specified future years. * * * In Massachusetts an assignment of future services, there being no existing contract of service, has been held invalid; but cases are cited in the same state which hold that if the assignor is at the time under a contract of service, it is maintainable. * * * In New Hampshire it is decided that wages to become due may be effectually assigned, provided there is at the time an existing contract under whieh they are to be earned. * * * The distinction between the eases in which the wages are not earned under a contract existing at the time of the assignment and those in which they are, is said to be that, ‘In the former the future earnings are a mere possibility, coupled with no interest, while in the latter the possibility of future earnings is coupled with an interest, and the right to them, though contingent.and liable to be defeated, is a vested right.’ ”

This case was where an effort was made to garnishee the wages of an employe. The court say further, page 440:

“But we are inclined to think that this case ought not to be distinguished from those in which the wages were earned under a continuous contract. The defendant was employed at the time the assignment was made. It is true he might never have received inore work, but the expectation of continuous work existed on the part of employer and employed. The proposed transfer had reference to wages to be earned in an existing employment, and in this it differed from that in Mulhall v. Quinn, supra [67 Mass. 505], where the defendant only performed jobs occasionally.”

It was held in this Michigan case that the transfer to the mother was a complete transfer of the title to the earnings.

In State v. Hastings, 15 Wis. 75, a judge of the circuit court had made an assignment of his salary to be earned after the time of the assignment and to become due on October 1, 1891. He undertook to repudiate it, said that it was an assignment of a thing not in existence, but it was held that the assignment was valid and that the assignee was the owner of the salary earned after the assignment was made.

The case of Hawley v. Bristol, 39 Conn. 26, differs from the case now being considered in that there was a definite fixed employment. The assignor had already earned $50 under a contract. He was to earn $625 in all. It was there held that the assignment of that to be thereafter earned was valid and carried the title.

In the case of Metcalf v. Kincaid, 87 Iowa 443 [54 N. W. Rep. 867; 43 Am. St. Rep. 391], the second clause of the syllabus reads:

“An assignment of wages yet to be earned is good as against the claims of attaching creditors, if accepted, and if, at the time it is made, there is an existing engagement or employment by virtue of which wages are being, and in the future may reasonably be expected to be, earned, even though there is no contract or fixed time of employment. ’ ’

And in the opinion, on page 447, it is said:

“It has often been held that when one assigns wages to be earned under an engagement then existing, and when he was actually at work thereunder, at a fixed price, payable at a certain time, though no contract of employment existed for any stipulated time, yet such an assignment, if accepted, would be good as against a garnishment by creditors of the assignor.”

To the same effect is the case of Boylen v. Leonard, 84 Mass. 407. The second clause of the syllabus reads:

“An assignment of wages, without, limitation of time, will include wages earned by a laborer for nine months thereafter, under a contract then existing, by which he was to labor for his employer for an indefinite time, although his rate of wages was afterwards increased; especially if the parties have treated the assignment as applicable to such wages, and payments thereof have been made to the assignee since the rate was increased.”

Other authorities are to the same effect, the holdings seeming to be that one assigning future earnings for which there is such relation between the assignor and his employer as that the employe may reasonably be expected to earn wages in the future, are valid.

¥e come to the conclusion, then, that this assignment is valid and transferred the ownership of the wages earned after the contract was made, — the wages that Finneran thereafter earned from the Brooks Company. That being true, no claim for exemptions could prevail as against it because the wages, not being the property of Finneran but the property of the assignee, neither Finneran nor his family could claim an exemption any more than in chattel property which is sold by the owner.

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

Hale and Winch, JJ., concur.


author: SWING, J.

text:
    CONTRACTS — EVIDENCE—TRIAL.
    [Hamilton (1st) Circuit Court,
    February, 1905.]
    Jelke, Swing and Giffen, JJ.
    Henry Schmidt v. Leroy Turner.
    Testimony as to Fair Price of Certain Work Admissible to Rebut Testimony as to Market Price.
    Where the terms of a written contract for the excavation of a ditch are ambiguous, and a fair price for the work can be determined, in an action on such contract, only from the particular circumstances of the ease, and defendant has produced testimony for the purpose of showing the fair market price to explain the ambiguity, the admission of evidence in rebuttal by plaintiff, to show the fair price of such work, is not reversible error.

      Error to Hamilton common pleas court. '
    Moulinier, Bettman & Hunt, for plaintiff in error.
    Geoffrey Goldsmith and J. R. Jordan, for defendant in error.
   SWING, J.

This case is in this court on error to the judgment of the court of common pleas. The only error complained of relates to the admission of certain evidence by the plaintiff below, offered and received in rebuttal. The action was on a written contract for digging a ditch. The only question in controversy is as to the price at which the work was to be done: whether it was thirty-five cents per foot or thirty-five cents per yard. The plaintiff claimed it was thirty-five cents per lineal ,foot, while the defendant claimed it was thirty-five cents per cubic yard.

It is undisputed that two copies of the contract were written out. The one kept by plaintiff was signed by both parties and was for thirty-five cents per foot; the one retained by defendant was signed by Turner. This one also was for thirty-five cents per foot. On the back of this was an unsigned statement that it was to be thirty-five cents per yard, which defendant claimed was the. agreed price.

By way of defense, the defendant offered the evidence of three witnesses, who gave evidence tending to show that they were contractors of experience in such work in the locality of this work, and they were asked as to the fair market price for such work in that locality at that time and over the objection of the plaintiff they were permitted to answer what the fair market price was.

It was claimed to come within the rule announced in Allison v. Horning, 22 Ohio St. 138, and Tompkins v. Starr, 41 Ohio St. 305, 307. In Allison v. Horning, supra, the syllabus is as follows:

“In an action to recover the amount due on a contract for work, when the testimony is conflicting as to the price agreed upon for the work, it is competent to show the value of such work at the time the contract was made, as tending to show what the agreed price was.”

On page 142, the court, in discussing the evidence of the case, say:

“But it was of some value, as tending, to show the improbability . of the claim of the defendant, and to enable the jury to arrive at the ■truth upon the point at issue between the parties, and was, therefore, admissible for what it was worth, in connection with the other evidence in the case.”

In the opinion, page 142, the court cites two cases as sustaining its conclusions and quotes from Kidder v. Smith, 34 Yt. 294, as follows:

“ ‘When the testimony is- conflicting as to the price agreed upon in the sale of personal property, it is competent to show the value of the property at the time- of sale, as tending to show what the real contract was.’ The chief justice, in delivering the opinion, said: ‘The parties were in dispute, and their evidence conflicting — whether the defendant was to pay $35 or $60 for the mare; and it became necessary to resort to circumstances and probabilities to determine which was right. As showing, a probability in favor of the defendant’s version of the trade, we think it was competent for the defendant to prove the value of the mare to be even less than the sum he agreed he was to pay.’ ”

The court also quote from Swain v. Cheney, 41 N. H. 232, as follows :

“Evidence was admissible as bearing upon the probabilities'of the case to show what the usual and common price paid at that time and. place for similar services.”

The conclusion of the court is evidently based on the Vermont case rather than the New Hampshire case, as the two are not exactly the same in principle.

The case of Allison v. Horning, supra, is followed in the case of Spurck v. Dean, 49 Neb. 66 [68 N. W. Rep. 375]; the third proposition of the syllabus in the case being as follows:

“Where in an action to recover an amount alleged to be due the plaintiff as wages for work and labor performed at an agreed price, there is a conflict in respect to the amount agreed upon, evidence of the value, at the time of the contract, of the work performed, is competent and admissible.”

In the case of Valley Lumber Co. v. Smith, 71 Wis. 304 [37 N. W. Rep. 412; 5 Am. St. Rep. 216], the first proposition of the syllabus is as follows:

“Where there is a direct conflict of testimony as to the price orally agreed to be paid for property, evidence of its real value at the time of the contract is admissible.”

In Kvammen v. Mill Co. 58 Wis. 399 [17 N. W. Rep. 22], the second proposition of the syllabus is as follows:

“In an action for the balance due on a parol contract for manufacturing laths, the complaint alleged that the agreed price was forty-five cents, and the answer that it was twenty-six cents, per thousand. It appeared that, in pursuance of the contract, the work had been done in the defendants’ mill and it had furnished the power, oils, files, and twine, and had done the filing and mill-wright work: Held, that evidence on the part of the plaintiff as to the usual price for sawing laths in mills generally, was inadmissible.”

These last two cases cite the case of Allison v. Horning, supra.

It will be seen that the foundation on which the rule rests is not very substantial and that the value of the evidence is not considered very great. It is considered of some value and is admitted for what it is worth, is about the best that can be said of it.

We find no decision which goes to the extent of admitting evidence as to the “market price”'in such cases, and it would seem from the case of Kvammen v. Mill Co. supra, where “usual price” was held inadmissible that “market price” would be equally inadmissible. Probably there could be no such thing as a “market price” for digging a ditch, that the difference which must naturally exist in different ditches would require different prices and therefore preclude the establishment of a market price.

It is doubtful whether plaintiff in error had properly saved an exception to the evidence offered by plaintiff in rebuttal. Evidence was offered by plaintiff in chief without objection on the part of the defendant as to the number of men and as to the time that they worked on this work, so that whether the objection of defendant to this kind of evidence when offered by plaintiff in rebuttal was well taken or not would probably be immaterial for the reason that the evidence was already before the jury without objection.

But we are of the opinion that this evidence was proper by way of rebuttal to the evidence of the defendant as to market price.

The judgment will be affirmed.

Jelke and Giffen, JJ., concur.


text:
    DOWER — EXEMPTIONS—HOMESTEAD—MARSHALING LIENS.
    [Hamilton (1st) Circuit Court,
    January 25, 1905.
    Giffen, Jelke and Swing, JJ.
    Oscar Stoehr v. Moerlein Brew. Co.
    1. No Dower or Homestead as against Mortgage, when.
    There can be no dower interest or homestead exemption as against a mortgage which the claimants to dower and homestead have joined in executing.
    2. Priority as between Dower and Homestead.
    In the application of the amount of a dower interest and a homestead exemption to the satisfaction of a mortgage in which the husband and wife joined, resort should first be had to the amount of the homestead where the wife, claiming dower, joined in the mortgage simply as surety.
    3. Application of above Principles.
    In an action for the foreclosure of a mortgage in which the wife of the grantor joined as surety, and for the adjustment of the liens of another mortgage and several judgments, the property having been sold, the wife’s dower interest and the homestead exemption should first be deducted from the proceeds, the balance being applied to the satisfaction of the liens in the order of their priority until the fund is exhausted, after which resort may be had by the mortgagees, but not by the judgment lienholders, to the homestead exemption and the dower interest, but the amount of the exemption should be first taken, before resort is had to the dower interest, the wife having joined in the execution of the mortgages merely as surety.
    Error to Hamilton common pleas court.
    Oscar Stoehr and Prescott Smith, for plaintiff in error:
    As to lien of judgment. Laning R. L. 8901, 8903, 8904, 8905, 8943 , (R. S. 5375, 5377, 5378, 5379, 5415) ; Coal Co. v. Bank, 55 Ohio St. 233 [45 N. E. Rep. 630]; Cillett v. Miller, 5 Circ. Dec. 588 (12 R. 215).
    As to dower interest. Kilgore v. Miller, 10 Circ. Dec. 464 (19 R. 93); Mandel v. McClave, 46 Ohio St. 407 [22 N. E. Rep. 290; 5 L. R. A. 519; 15 Am. St. Rep. 627]; Giauque & McClure, Present Value Tables 164; Black v. Kuhlman, 30 Obio St. 196; Unger v. Leiter, 32 Ohio St. 210.
    As to priorities and distribution. Laning R. L. 8969 (R. S. 5440) ; Jackson v. Beid, 32 Ohio St. 443; Kelly v. Duffy, 31 Ohio St. 437; Cooper v. Cooper, 24 Ohio St. 488; McConville v. Lee, 31 Ohio St. 447; Boig v. Schults, 42 Ohio St. 165; Niehaus v. Faul, 43 Ohio St. 63 [1 N. E. Rep. 87]; Nixon v. Vandyke, 1 Circ. Dec. 364 (2 R. 63) ;• Knepfle, In re, 6 Dec. 417 (4 N. P. 213) ; Simmons v. Moore, 13-23 O. C. C. 11; Mandel v. McClave, 46 Ohio St. 407 [22 N. E. Rep. 290; 5 L. R. A. 519; 15 Am. St. Rep. 627]; Loomis v. Building Assn. 37 Ohio St. 392; Van Thorniley v. Peters, 26 Ohio St. 471; Finley v. Bank, 1 O. S. C. D. 236 (32 Bull. 382).
    Constant Southworth, for Mr. and Mrs. Zeltner.
    Paxton and Warrington, for the brewing company.
   SWING, J.

This was an action for the foreclosure of a mortgage and the adjustment of liens on certain real estate. The property in litigation was sold for $12,050, and after paying costs, taxes and uncontested mortgage liens, there remained the sum of $1,501.49 for distribution under the following facts:

Michael Zeltner was the owner of the real estate. His wife, Mar' garet Zeltner, joined with her husband in all the mortgages given by him. Her inchoate right of dower in the land was worth $555.

January 28, 1902, Oscar Stoehr recovered a judgment against Michael Zeltner for $250.

July 16, 1902, Zeltner and wife gave a mortgage to the Moerlein Brewing Company for $703.80.

June 11, 1903, Prescott Smith recovered a judgment against Michael Zeltner for $250.

July 13, 1903, Zeltner and wife gave a mortgage to the Moerlein Brewing Company for the sum of $338.42.

March 21, 1904, the Moerlein Brewing Company recovered a judgment against Michael Zeltner for $86.05.

May 16, 1904, Anthony Nulsen recovered a judgment against Michael Zeltner for $79.95.

Michael Zeltner claimed an exemption under the statute of $500 in lieu of a homestead to which it is admitted he was entitled as against judgment liens.

We are of the opinion.that the value of Mrs. Zeltner’s dower interest. should first be deducted from the $1,500. This is her individual property and is in no way liable for the debts of her husband. It can only be taken for her own debt or by one to whom she has released it.

It is liable to be taken by the mortgagees in this case since she has joined with her husband in releasing dower, but not as a principal but as a surety for her husband. Mandel v. McClave, 46 Ohio St. 407 [22 N. E. Rep. 290; 5 L. R. A. 519; 15 Am. St. Rep. 627].

After deducting Mrs. Zeltner’s dower interest there remains $946.-49. From this should be first deducted the homestead exemption of Zeltner of $500.

This leaves a balance of $446.49. From this should first be applied the sum of $250, the amount of the lien of Oscar Stoehr as his judgment in the first lien.

The Moerlein mortgage of $703.80 is the next best lien and the balance of $196.49 after deducting the Stoehr lien should be applied on the Moerlein mortgage, and as it is not enough, the $500 homestead exemption should also be applied, for as against the mortgage there can be no exemption. Van Thorniley v. Peters, 26 Ohio St. 471. This would allow $696.49 to be applied on this mortgage, but it is not sufficient to pay it in full. Therefore Moerlein must resort to the dower interest of Mrs. Zeltner to make up the deficiency; this would require $7.31.

The lien of Prescott Smith is next, but all the property of Michael Zeltner has been exhausted in the payment of prior liens and he cannot resort to the dower interest of Mrs. Zeltner for its payment.

Next after his lien comes the mortgage of Moerlein, dated July 13, 1903, for $338.42. As Mrs. Zeltner released her right of dower in this mortgage Moerlein may have recourse to the dower interest for enough to satisfy the same. Finley v. Bank, 1 O. S. C. D. 236 (32 Bull. 382).

The balance should be paid to Mrs. Zeltner which exhausts the fund, and no other liens need be considered.

Mrs. Zeltner cannot claim her dower against the mortgagees to whom she released. Neither can Zeltner hold exempt $500 in lieu of a homestead as against his mortgagees, but we think as between Zeltner’s homestead exemption and Mrs. Zeltner’s dower interest, the homestead exemption should first be applied to the mortgage for the reason that she stands in relation to these mortgagees as surety for her husband, and the whole of his property must first be exhausted before resorting to her’s.

The judgment of the court of common pleas should be modified to conform to these conclusions.

Giffen and Jelke, JJ., concur.


author: GIFFEN, J.

text:
    FRAUDULENT CONVEYANCES — EVIDENCE.
    [Hamilton (1st) Circuit Court,
    1905.]
    Jelke, Giffen. and Swing, JJ.
    German Nat. Bank of Newport v. W. A. Young, Jr., et al.
    Presumption in Favor of Bona Fide Character of Conveyance.
    The burden of proof as to the fraudulent nature of a conveyance rests upon those seeking to have it set aside, and any doubt as to the Bomb’ fide character of the transaction must be resolved in favor of the defendants.
    Error to Hamilton common pleas court.
    John Nichols and Matt Herold, for plaintiff in error.
    C. B. Matthews and C. E. Schell, for defendant in error.
   GIFFEN, J.

We entertain no doubt that the conveyance from Robert O. Young to his father, William A. Young, was made in good faith and for full value. Whatever doubt exists concerning the conveyance made by Doctor William A. Young, Jr., to his wife, must be resolved in favor-of the defendants, as the burden of proof that it was fraudulent rested upon the plaintiff, and it was not, as claimed by counsel, incumbent upon the defendants to show the good faith of the transaction.

We think the plaintiff has failed to prove by a fair preponderance of the evidence the allegation of fraud. The transfer from Doctor Young to his wife of his equity in the Spring Grove avenue lot was not a gift, but upon the consideration that she pay the taxes and sewer assessments, which she afterwards did.

Judgment affirmed.

Jelke and Swing, JJ., concur.


text:
    STATUTES — TAXATION.
    [Lucas (6th) Circuit Court,
    March 11, 1905.]
    Hull, Haynes and Parker, JJ.
    C. W. F. Kirkley v. Peter Parker, Treas.
    Tax Levied before Law Held Void not Lesal, may be Enjoined.
    The mere fact, alone, that an unconstitutional statute, under which a tax levy was made, had not, up to, the time of making the levy, been held unconstitutional by the Supreme Court, will not legalize the tax and warxaht a court in refusing to enjoin its collection.
    Error to Lucas common pleas court.
    B. A. Hayes, for plaintiff in error:

      Stare decisis. Yost v. Brewery Co,. 10 Circ. Dec. 693 (20 R. 26) ; Maumee Brewing Co. v. Yost, 63 Ohio St. 563 [60 N. E. Rep. 1132]; Pump v. Lucas Co. (Comrs.) -69 Ohio St. 448 [69 N. E. Rep. 666]; 26 Ene. Law (2 ed.) 179; Lewis v. Symmes, 61 Ohio St. 471 [56 N. E. Rep. 194; 76 Am. St. Rep. 428]; Price v. Toledo, 25 O. C. C. 617; State v. The Judges, 21 Ohio St. 1; State v. Lewis, 69 Ohio St. 202 [69 N. E. Rep. 132]; Willis v. Owen, 43 Tex. 41; Cleveland v. Wick, 18 Ohio St. 304; Cin. L. & N. By. v. Cincinnati, 62 Ohio St. 465 [57 N. E. Rep. 529; 49 L. R. A. 566].
    W. G. Ulery and J. S. Martin, for defendant in error.
   HAYNES, J.

A petition in error is filed in this ease for the purpose of reversing a judgment of the court of common pleas in a matter of certain alleged illegal taxes. The facts of the case are so well stated in the brief of the plaintiff in error that I quote from it:

“In the court of common pleas the plaintiff in error, who was plaintiff below, brought an action to restrain the county treasurer from collecting part (to wit, $214.10) of the taxes standing charged on the tax duplicate of 1904 against lot 224, Port Lawrence division, the plaintiff admitting that the balance (to wit, $2,033.07) was legal and due.
“The court below restrained the treasurer from collecting $155.87 of the $214.10, but refused to enjoin the collection of the balance, $58.23. Because of the refusal to enjoin this small suni, $58.23, the plaintiff prosecutes error here. It appears from the petition that in June, 1903, the county commissioners levied for general county purposes two and thirty-seven one-hundredths mills on each dollar of taxable valuation. Under the Lucas county clause of Lan. R. L. 4265 (R. S. 2823), as it stood prior to the amendment of April 23, 1904 (97 O. L. 308), the commissioners were authorized to levy not to exceed five mills for all county purposes; but under the general clause of that section they were authorized to levy only seven-tenths of a mill in counties having a taxable valuation between $70,000,000 and $100,000,000, of which Lucas county is one. The rate actually levied (two and thirty-seven one-hundredths mills) exceeded the rate authorized by the general clause of Lan. R. L. 4265; R. S. 2823 (seven-tenths of a mill) by one and sixty-seven one-hundredths mills, which on a valuation of $34,870 — the valuation of the property in question — would amount to $58.23, the amount in controversy before this court. In March, 1900, in the case of Yost v. Brewery Co. 10 Circ. Dec. 693 (20 R. 26), this court held the Lucas county clause of Lan. R. L. 4265 (R. S. 2823) to be constitutional. This decision was affirmed without report by the Supreme Court June 5, 1900, Maumee Brew. Co. v. Yost, 63 Ohio St. 563; but January 19, 1904, after the levy of the county commissioners in the case at bar (June, 1903), in the case of Pump v. Lucas Co. (Comrs.) 69 Ohio St. 448 [69 N. E. Rep. 666], the Supreme Court held the Lucas county clause of Lan. R. L. 4265 (R. S. 2823) to be unconstitutional and that Lucas county must be governed by the general clause of that section. The eourt below applied the doctrine of stare decisis to the case at bar and held the law levied for county purposes to be valid.”

The case stands upon the petition; there was no answer filed in the court of common pleas — the facts were taken to be admitted.

It was urged by counsel on behalf of the county commissioners that we ought not to interfere with this tax because, at the time or before the tax was levied, while this suit was pending in the Supreme Court, an application was made to that court for temporary injunction, prior to June of that year, prior to the time at which the tax levy was made by the county commissioners, and that that court overruled the motion without announcing any decision upon the point. That subsequent and after the tax was levied, the Supreme Court in that same case decided that that law was unconstitutional and invalid. It is claimed by counsel that, relying upon the fact that the Supreme Court overruled the motion for a temporary injunction the commissioners in this action proceeded to make the levy although the case was then pending in the Supreme Court. There is no contention but that the law has been declared unconstitutional by the Supreme Court; the only' contention is, that it is not applicable to an assessment or to levies which were made prior to the decision of the Supreme Court, as is the case here.

The court below, as we understand it, proceeded in the decision upon the general idea that by reason of the fact that the law had not been declared unconstitutional and had not been so held by the Supreme Court at the time the levy was made that therefore the court ought not to interfere in the way of injunction to restrain the collection of this tax. But we are unable to agree with the court in that respect. We have examined the cases which have been eited by counsel for the plaintiff and we think that the decision of the Supreme Court of this state, following the decision of the Supreme Court of the United States and of other states limits the cases, where the court will refuse to interfere, to cases where there have been contracts entered into upon the faith of the statutes and the decisions of the Supreme Court of the state under them. To that effect we think is the cause of Lewis v. Symmes, 61 Ohio St. 471 [56 N. E. Rep. 194; 76 Am. St. Rep. 428] and State v. Lewis, 69 Ohio St. 202, 209 [69 N. E. Rep. 132], and counsel have also cited a very brief statement of the law from 26 Am. & Eng. Enc. Law (2 ed.) 179.

Now there is no answer filed in this case and it nowhere appears in the record of the case that there had been any contracts whatever entered into upon the -faith of this tax when it was levied or the decision of the Supreme Court made under it; it is in fact a levy made for the general funds of the county and we are clear in our minds that the rule of law which they seek to apply has no application to a ease of this kind. We have once expressed ourselves upon this law, but as we understand it we are now following the decisions of the Supreme Court of this state, as we are required to do, and under those decisions we think the plaintiff in error is entitled to have this part of the law declared to be unconstitutional, illegal and void and the collection enjoined, and for that reason the judgment of the court of common pleas will be reversed and the cause remanded to that court for further action.

Hull and Parker, JJ., concur.