text:
    ATTACHMENT AND GARNISHMENT — INFANTS
    [Lorain (8th) Circuit Court,
    April 26, 1911.]
    Marvin, Winch and Henry, JJ.
    Nichols Brothers v. Charles Koshinick.
    1. Attachment not Discharged on Order Restoring Property to Other Person Claiming Same.
    Upon a claim of ownership of attached property by a person other than the defendant an order restoring the property to the claimant may be made, but it is erroneous to discharge the attachment'because of such claim.
    2. Judgment against Infant Personally Sued not Void.
    A judgment against an infant defendant, sued personally, is not void, but will remain subject to review until a sufficient time after removal of the disability of infancy shall have elapsed to bar such review.
   HENRY, J.

Nichols Brothers sued Charles Koshinick before a justice of the peace upon an account, and on the same day garnisheed the Been Electric Co. Default judgment was rendered for the plaintiff November 17, 1909, but the garnishee not having answered, no order was made against it. Two days.later Charles Nick filed his motion to discharge the attachment, and this motion upon being heard, was granted.

There is no express authority of law for entertaining such motion filed by the defendant after judgment. Section 6522 R. S. (Sec. 10297 G. C.) provides .only for the filing of such motion by the defendant before judgment. We incline to believe, though it is unnecessary now to hold,-that the judgment meant is the judgment on the merits in principal action and not the order or judgment, if any, against the garnishee. The motion itself, however, alleges that Charles Nick, who filed it, “is not the above named defendant.” On the hearing of this motion, Charles Nick gives evidence tending to show that it was his father, Kosti Nick, who incurred the debt, whereas the wages attached were earned by the witness, who is the minor son of said Kosti Nick.'

Considered as a claim of ownership of the attached property by a person other than the defendant, the motion was triable as if “the property had been seized upon execution issued by the justice of the peace and claimed by a third person” Sec. 6509 K. S. (Sec. 10283 G-. C.). And the right of property was thus tried substantially in accordance with Secs. 6573-6575 it. S. (See. 10371-10373, G. C.).

The boy, it appears, had been doing business upon his own account to some extent, but there is no sufficient evidence of emancipation to warrant the court in finding that the wages he had earned were not the property of his father. Even if the justice had been warranted in so finding, the judgment should not have been a discharge of the attachment, but an order restoring to the claimant his property erroneously detained by the garnishee as that of the defendant. The garnishee being in default for answer, it might, for aught appearing to the contrary, have been detaining not only the .boy’s wages but also money due the father. If so, the attachment being regular, it was improper to discharge it.

There is much confusion in the record as to whether the boy or his father was the real defendant in the original action. The constable’s return recites personal service of the summons upon the defendant. The boy testifies that the summons was handed by the constable to him and not to his father, who had just left on a visit to Europe. But the constable, he says, told him to send it to his father. The bill of exceptions, prepared by Nichols Brothers and certified by the justice, alleges that the said motion was interposed by the defendant, and that on the trial thereof he offered himself as a witness. The style of the original action was Nichols Brothers v. Koshinick, alias Kosti Nick, and though the boy’s name is Charles Nick and the father’s Kosti Nick it is not certain that the former was not meant. The boy testifies that Nichols Bros, claimed that he was the one indebted to them. If they intended to sue the boy, the action was irregular in that the defendant was an infant, sued personally, without guardian. But the judgment is not therefore void, though it will remain subject to review until a sufficient time after the removal of the disability of infancy shall have elapsed to bar such review.

In any event the judgment of the justice discharging the attachment, and that of the common pleas court in affirmance therefor, were erroneous, and the same must be set aside and the cause remanded to the latter court. Proceeding therefor to render the judgment which the court of common pleas should have rendered, the judgment of the justice of the peace discharging the attachment is reversed because it is contrary to law and the evidence, and the cause will be retained in the common pleas for retrial.

Marvin and Winch, JJ., concur.


source: Caselaw Access Project

author: HENRY, J.

license: Public Domain

text:
    BILLS AND NOTES
    [Lorain (8th) Circuit Court,
    April 26, 1911.]
    Marvin, Winch and Henry, JJ.
    Huron County Banking Co. v. Oberlin Gas and Elec. Co. et. al.
    Phrase “We or Either of Us” in Promissory Note Signed by Corporation Name and Officers’ Names Renders Officers Liable Also.
    When the words “we or either of us” and other kindred phrases appear in the body of a promissory note, signed by the proper officers of a corporation in the corporate name, but underneath the corporate name said officers sign their own names, though they affix thereto their appropriate official titles as such officers, the note will be construed as the note of the corporation and of said officers, as individuals. Aungst v. Oreque, 72 Ohio St. 551, distinguished.
    Error.
   HENRY, J.

Tbe parties stand bere as tbey stood' below. There the court sustained the demurrer of the defendants Hill and Hay to the petition of the plaintiff praying personal judgments against each of them as well as the Oberlin Gas & Electric Co. upon a promissory note as follows:

“$2,500.00 Oberlin, Ohio, December 29, 1909.
“Four months after date, for value received, We or either of us, promise to pay to the Huron County Banking Company of Norwalk, Ohio, or order, at its banking office, twenty-five hundred and 00-100 — dollars, with interest at the rate of 7 per cent, per annum, payable semiannually, having deposited with said banking company the following described property, to wit: eight (8) first Consolidated 6 per cent. Mortgage Bonds of the Oberlin Gas & Electric Company par value $500 each; same being Nos. 329-336 inc. — as collateral security for the payment of the above indebtedness of the undersigned to said banking company. The extension of the time of payment or renewal of the indebtedness evidenced by this note, shall in no way release the undersigned or either of them, or the collateral security above described, or any substituted or additional security which may be furnished; and we, or either of us, hereby agree to deposit with said banking company, upon its demand, such additional collateral security as said banking company may from time to time require. On the non-performance of the foregoing conditions, provisions and agreements as to furnishing additional collateral, or upon the non-payment of the above mentioned liability, then and in either ease, we or either of us hereby authorize and empower the said banking company to sell, assign and deliver the whole or any part of the above securities or any substitutes therefor, or any additions thereto at any brokers’ board or at public or private sale at the opinion of said banking company or of any one or more of-its officers without either public advertisement or personal notice to us or either of us, both of which are hereby expressly waived. If said securities are sold at public sale the said banking company may itself purchase the whole or any part thereof, free from all rights of redemption on the part of us or either of us, which right is hereby waived and released; and after deducting all legal and other costs and expenses for collection, sale and delivery of said securities, the residue of the proceeds of such sale or sales so made shall be applied upon the payment of the above liability; the overplus, if any, to be paid to us, or either of us.
“The Oberlin Gas & Electric Co.,
“J. C. Hill, President,
“Albert E. Hay, Treasurer.”

There are no endorsements nor credits upon said note.

We hold that the words “or either of us,” and other kindred phrases in the body of this note, distinguish this case from that of Aungst v. Creque, 72 Ohio St. 551 [74 N. E. 1073], which decided that:

‘ ‘ But where a promissory note is signed by the proper officer of a corporation in the corporate name, and underneath the corporate name he signs his own name, affixing thereto his appropriate official title as an officer of said corporation, in the absence of anything in the body of the instrument requiring a different construction, such note will be construed and held to be the note of the corporation only, and not the note of the officer so signing, or the joint note of such officer and the corporation. ’ ’

Judgment reversed for error in sustaining demurrer, and cause remanded.

Marvin and Winch, JJ., concur.


text:
    MECHANICS’ LIENS
    [Lorain (8th) Circuit Court,
    April 26, 1911.]
    Marvin, Winch and Henry, JJ.
    Cleveland Trust Co. v. Oberlin (Vil.) et al.
    One Filing Sworn Statements with Owner and County Recorder Within Four Months Lets Others in Filing Statements within next Succeeding Ten Days, though Four Months Elapsed.
    When a subcontractor, materialman, laborer, or mechanic has, within four months from the furnishing of his material or labor, filed his sworn and itemized statement thereof as provided by Sec. 8324 G. C. and files a copy thereof with the county recorder, as required by Sec. 8326 G. C., all other subcontractors, material-men, laborers and mechanics who file their statements within ten days thereafter, as provided by Sec. 8328 G. C., are thereby let in to participate in the fund, though more than four months have elapsed since their claims accrued.
   HENRY, J.

Under Sec. 8324 and 8328 6. C. relating to mechanics’ liens and attested accounts, we hold that where a subcontractor, materialman, laborer, or mechanic, has, within four months from the furnishing of his material or labor, filed his sworn and itemized statement thereof as provided, by the former section, and files a copy thereof with the county recorder as required by Sec. 8326 G. C. all other subcontractors, materialmen, laborers and mechanics, who file their statements within ten days thereafter, as provided by Sec. 8328 G. C. are thereby let in to participate in the fund, though more than four months have elapsed since their claims accrued. The statutes in question, having; as we read them, expressly so provided, we are not at liberty to construe them otherwise.

Under Sec. 8334 G. C. the transfer of the avails of his contract, by the head contractor to the plaintiff here, is made subject to valid claims, of the sort above described, upon the fund in the hands of the defendant, and the plaintiff is entitled to nothing until those claims are paid. So also the assignee in insolvency of the head contractor is not entitled to .fees, for himself or his counsel out of this fund, for finishing the contract. The assignee’s services were not a continuation of the assignor’s business, petitioned for and ordered by the court, pursuant to Sec. 11125 G. C.; and no special allowance therefor in prejudice of the valid claim of the other parties to this action, can be made, under Sec. 11144 G. C. out of the avails of said contracts.

A decree may be taken as in the court below.

Marvin and Winch, JJ., concur.


text:
    CONTRACTS
    [Summit (8th) Circuit Court,
    April 12, 1911.]
    Marvin, Winch and Henry, JJ.
    Magadore Stoneware Co. v. Thomas Hiers.
    Recovery on Contract for Work and Labor Based on Breach or Completion and Measure of Damages.
    In an action growing out of a contract for work and labor, when the plaintiff relies upon repudiation of the contract before its completion by him, he should sue for its breach; if he alleges full performance, he must prove it, and in such case the measure of his recovery is the reasonable value of the work and not the sums expended to accomplish it.
    Error.
   HENRY, J.

This action was appealed to the court of common pleas from that of a justice of the peace. Hiers recovered a judgment on the following cause of action set forth in his second amended petition, which alleges “that the defendant, the Magadore Stoneware Co., is indebted to him in the sum of $285.95 for work done, labor performed and money paid out by him for said company, at its special instance and requests under a contract entered into by and between this plaintiff and said defendant company, whereby and by the terms of which contract the plaintiff was to open for the defendant company a clay mine on what is known as the Webb farm in Springfield township, Summit county, Ohio. He further says that said contract was entered into verbalty on or about May 10, 1908, by and between plaintiff and the said Magadore Stoneware Co., and through Charles F. Sheeby, its general manager and agent, said Sheeby then and thereby, in the making of said contract with this plaintiff, acting as such general manager and agent of the defendant company on its behalf. Plaintiff further says that, acting under and in performance of said contract so entered into as aforesaid, he proceeded to and did open a clay mine for the defendant company ; that in performing said work under aforesaid contract he paid to the several persons named below, for work and labor done and performed by them in the opening of the said mine by this plaintiff for the defendant company, the sums of money hereinafter immediately following set forth.”

After itemizing at length his accounts and outlays for labor, the second amended petition continues: “Plaintiff further says that, acting under and in performance of said agreement, he also made the following expenditure of money for material used in doing the work of opening said clay mine.” The items are then set forth.

The petition concludes with averments concerning Sheeby’s authority to make said contract, the company’s receipt and retention of the benefits of the labor performed and expenditures made thereunder, and the fact that the said sum of $285.95 for which judgment is prayed, is due and wholly unpaid.

The facts, as testified to by Hiers, are that on April 11, 1908, lie agreed verbally with tbe stoneware company to open tbe latter’s clay mine to tbe clay for the sum of $50, and that within the month he completed this contract and received his pay. On April 27, they entered into a further contract in writing, “to continue as long as the parties thereto mutually agree,” for the mining of clay by Hiers for the company at fifty-five cents a ton. Hiers worked one day under this contract and then threw it up, because the clay wall proved to be but a shell, behind which was an old abandoned working. Hiers called Sheeby’s attention to this and asked what he should do. Sheeby said, ‘ ‘ Go ahead, we’ve got to have the clay. ’ ’ Hiers thereupon continued the work through the old working. He had four or five men in his employ for about two months and furnished slabs and plank for timbering the mine. Upon applying to Sheeby for an advance of money upon his contract in order to meet his disbursements, he discovered that the company claimed that he was still working under his first contract to open the mine to the clay. Meanwhile pockets or pillars of clay were found from time to time, but no large deposit was reached.

Hiers quit his work, and the company continued it till clay in larger quantity was found; but the company’s business languished, and was soon abandoned. Hiers sued to recover what he had expended under his alleged third contract, and the company counter-claimed for the cost of completing his first contract.

The theory of Hiers’ second amended petition is that he fully performed his third contract, and that the measure of his recovery is the amount expended by him. His evidence shows that the company repudiated the contract before it was completed. He should, therefore, have alleged the fact of breach by the company instead of alleging his own full performance of the contract. But if he stands upon his claim of performance, he must, of course, prove it, and in that case, the measure of recovery is the reasonable value of the work, and not the sums expended to accomplish it. The second amended petition does not state a cause of action; nor is the evidence or the charge such as to cure the petition’s defects after verdict. By amending his petition once more, the plaintiff may be able to recover. But for three reasons, viz: first, that the petition does not state a cause of action; secondly, that the evidence fails to support the averment of the petition that the alleged' contract was fully performed; and thirdly, that the charge on the measure of recovery is erroneous, in view of Hiers ’ claim of full performance on his part, the judgment is reversed and the cause remanded.

Marvin and Winch, JJ., concur.


author: WILDMAN, J.

text:
    SPECIFIC PERFORMANCE
    [Wood (8th) Circuit Court,
    October 28, 1912.]
    Wildman, Kinkade and Richards, JJ.
    Charles Barr and Albert O’Mercer v. Frank E. Swartz.
    Imperfect Title Defense to Action for Specific Performance.
    The defense of imperfect title is good against an action to enforce specific performance of a'contract to purchase land, when it appears that the plaintiffs derived their title from one who to.ok by way of devise from his father, on condition that should he die without issue living, “the lands shall descend to my other children mentioned in this will share and share alike,” and when it appears from the testimony that the deviseé is still living and has children living.
    Ajppeal.

      Edward Beverstoclc and E. G. McClelland, for plaintiffs.

      Eugene Rheinfrank, N. R. Harrington and G. C. Nearing, for defendant.
   WILDMAN, J.

This is an action brought to this court by appeal to enforce the specific performance of a land contract, executed June 7, 1910, and partly performed by payment of an installment of the purchase price. The contract contemplated complete. execution by March 1, 1911, on-, or about which date a deed was tendered by the plaintiffs to the defendant and refused. The claim of the defendant is that by the terms of the contract, he was to have a good and perfect title to .the land contracted for; that subsequent to the execution of the contract he discovered that such title could not be obtained and granted to him and for that reason he demanded a rescission of the contract. Notice of his wish for such rescission had been given prior to the time .fixed for the complete payment and transfer of title, and promptly upon his discovery of the claimed defect.

The claimed title of the plaintiffs is based upon the conveyance of one Jamés Porter, together with quit-claim deeds from Porter’s brothers and sisters. James Porter and his brothers and sisters so quit-claiming, reasserted by the plaintiffs to have derived their title to the land in question by virtue of the will of Christopher Porter, their father, who died intestate some years before the execution of this contract. The provision of said will relating to the present controversy devises to James Porter the said land, charged with certain payments to. a daughter and the widow of Christopher, and then qualifies the devise in the following words:

‘ ‘ The devise in this item to my son, James is on this condition that, should he die without issue living, the said lands shall descend to my other children mentioned in this will sháre and share alike.”

The charge upon the land in favor of the daughter and widow has been extinguished by performance subsequent to the death of Christopher, leaving the question only as to the character and extent of the title devised to James, freed from the charge which I have mentioned.

It is the contention of the defendant that the title of James and the interest of his brothers and sisters joining in the quitclaim deed is of such doubtful character as to justify a court of equity in refusing a decree for specific performance. This contention is based upon numerous authorities. But they need not be reviewed by us in view of the emphatic holding of the Supreme Court of our own state in the case of Tiffin v. Shawhan, 43 Ohio St. 178. I quote the third paragraph of the syllabus:

“If the specific performance of such a contract would be harsh, oppressive, or inequitable in its consequences, or would leave the purchaser with a doubtful and unmarketable title, the court, in the exercise of its discretion, will refuse to decree its performance as no man will be compelled to accept a doubtful title.”

We might cite, as counsel have done, numerous adjudications expressing the view that a purchaser under land contract is not compelled to accept a clouded title, one unmerchantable, or which is likely to involve him in litigation to defend it. The equity of this rule is manifest, and we have no hesitancy in. assenting to it or in applying it to the conditions presented by the evidence in the case at bar. In saying this we wish not to be understood as departing in any respect from the construction heretofore placed by this court upon the will involved in the title to land litigated in the Anderson-Messenger cases. See Anderson v. United Realty Co., 29 O. C. C. 267 (9 N. S. 473), affirmed Anderson v. United Realty Co., 79 Ohio St., 23 [86 N. E. 644], United States Mtg. & Tr. Co. v. Messenger, 30 O. C. C. 491 (11 N. S. 171).

The United States circuit court of appeals, Anderson v. Messenger, 15 O. F. D. 214 (146 Fed. 929), has adopted a construction in conflict with the one obtaining in the state court, basing its decision upon the ease of Shaw v. Hoard, 18 Ohio St. 227.

If the view of this federal court were to be adopted, it would place the title to the real estate devised in the issue of James Porter, if any there shall be living at the time of his death. It is disclosed to us in evidence that, although he was unmarried at the date of his father’s will, he is now the father of four minor children, not parties to the litigation before us. We can not say that there is no possibility of their surviving their father, James Porter, and at some time in the future asserting title to this land. If they, or either of them should be nonresidents of this state, the result might be litigation in the federal court, which, if the last adjudications in that court on this subject should remain unreversed by the Supreme Court of the United States, the result would be disastrous to the claimed title of the plaintiffs in this action or of the defendant if ordered to fulfill the contract of purchase.

For reasons stated, decree for specific performance will be refused. The defendant has made payment of the sum of $500 as a first installment of the purchase price and one negotiable note for a like sum given by the defendant to plaintiffs to apply also upon the purchase price of the land, has been sold to some other party or parties.

It is conceded by counsel that if the plaintiff is not entitled to specific performance, the claim of the defendant for reimbursement to the amount of $1,000 and interest thereon, is just and should prevail. Judgment may be taken accordingly.

Kinkade and Richards, JJ., concur.


text:
    EMBEZZLEMENT — STATUTES
    [Medina (8th) Circuit Court,
    May 23, 1911.]
    Marvin, Winch and Henry, JJ.

      Emanuel F. Shelley v. State.
    1. Punctuation of Statutes Disregarded.
    There is abundant authority in this state for disregarding or rearranging punctuation of statutes in order to effectuate the evident meaning of the legislature.
    2. Limitations Apply to Period within Which Different Conversions Aggregated.
    The three year limitation in Sec. 6842 R. S. (Sec. 12467 G. C.),'applies only to the period within which different conversions may be aggregated so as to constitute one embezzlement, and does not interpose any bar to the prosecution of the crime.of embezzlement.
    3. Judgment upon Exceptions to Guardian’s Inventory and Accounts not Admissible in Prosecution for Embezzlement.
    At the trial of one indicted for embezzlement of funds of one for whom he had been appointed guardian, the judgment and orders of a court upon exceptions filed to the accused’s inventory and accounts as guardian, are not admissible in evidence.
    4. Embezzlement Completed when Guardian is Unable or Refusing to Account for Aggregate Amount of Funds Received-by Him.
    The nature of the crime of embezzlement is such that although money may be received by an agent or servant from time to time as it comes into his hands lawfully, there may be no completed crime of embezzlement until, having thus received several sums at different times he finally refuses or is unable' to account for the aggregate amount.
    5. Accused not Concealing Receipt of Money but Claiming to Keep Funds in Good Faith Against Owner.
    One is not guilty of embezzlement who has not concealed the receipt of money alleged to have been embezzled, but on the contrary, has claimed in good faith to keep it under some right as against the owner.

      F. V. Owen, F. N. Patterson and Frank Heath, for plaintiff in error.

      George Frey, N. M. Wolf, C. M. Workman, W. J. Weirick and N. H. McClure, for defendant in error.

      Affirmed, State v. Shelley, 85 Ohio St. 481.

   HENRY, J.

Plaintiff in error was convicted of embezzling $15,000. September 28th, 1904, while agent and attorney-in-fact for one Paul Oliver, the trial occurring in October, 1910, upon a change of venue from Ashland to Medina county.

The first error assigned involves the construction of Sec. 6842 R. S. (Sec. 12467 G-. C.), upon the question of the three years limitation therein prescribed for the prosecution of embezzlers, the indictment in this case having been returned more than three years after the date of the offense therein charged.

We hold, however, that the concluding clause of said section should be read as if there were commas after the word “time” and “prosecution,” and none after the word “times.”

The clause as thus punctuated will then read:

“If the total value of the property embezzled in the same continuous employment of term of office, whether embezzled at one time, or at different times if within three years prior to the inception of the prosecution, amounts to or exceeds thirty-five dollars, shall be imprisoned in the penitentiai'y not more than ten years, nor less than one year, or, if such total value is less than thirty-five dollars, be fined not more than two hundred dollars, or imprisoned not more than thirty days, or both.' ’

The three years limitation applies only to the period within which different conversions may be aggregated so as to constitute one embezzlement, and does not interpose any bar to the prosecution of the crime of embezzlement generally.

The reasons for this conclusion are well pointed out in State v. Bailey, 19 Dec. 442 (7 O. L. R. 432); see also State v. Gibbs, 20 Dec. 1 (9 N. S. 129). There is abundant authority in this state for disregarding or rearranging punctuation of statutes in order to effectuate the evident meaning of the Legislature. Al-bright v. Payne, 43 Ohio St. 8, 15 [1 N. E. 16]; Shriedley v. State, 23 Ohio St. 140; Slingluff v. Weaver, 66 Ohio St. 621, 629 [64 N. E. 574]; Allen v. Russel, 39 Ohio St. 336, 337; Hamilton v. Steamboat Hamilton, 16 Ohio St. 428, 429; Burgess v. Everett, 9 Ohio St., 425, 428; Pancoast v. Ruffin, 1 Ohio 381, 386.

We hold therefore, that this prosecution is not barred by any statute of limitation.

A further assignment of error is that the court erred in charging the jury as follows:

“Gentlemen of the jury, the other day there was certain evidence offered in this case, in the nature of records of the pages of the journal of the court of common pleas and the circuit court of Ashland, as to the two items of accounts in the account of E. F. Shelley, as guardian of Paul Oliver, being one item for $10,000 and another item for $5,000; there were other items, but I simply call your attention to these two, which it is claimed by the state were items embezzled and with which the defendant is charged for one crime of embezzlement. Now, so far as those two items are concerned, they were adjudicated in the court of common pleas, which case was affirmed by the circuit court, and the court admits the records of those two courts upon the question as to whether or not those two items were legal items of charge for which Shelley should have been credited as to whether the charges simply were legal, and they are admitted for no other purpose.” (Bill of exceptions, pages 89 and 90.)

The adjudication referred to is the judgment and orders of the court upon the exceptions filed to Shelley’s inventory and accounts as guardian of said Oliver’s estate, to which office he was appointed October 4, 1904, after having had virtually sole charge of his ward’s property for some five months previous to that date, by virtue of a general power of attorney appointing him the attorney-in-fact of said Oliver.

For some years prior to 1904, the accused claims to have done much business for Oliver. In his accounts as guardian, he charges himself with assets received both before and after the date when said guardianship commenced, and seeks to credit himself with $15,000 compensation for his services in all said capacities, including $10,000 for services before, and $5,000 for services during the guardianship. These credits were both disallowed in the adjudication referred to, and the record of that proceeding constitutes the backbone of the proof of guilt in this prosecution.

In Gee v. State, 60 Ohio St. 485 [55 N. E. 48] it was held that:

“On the trial of the issues joined by a plea of not guilty to an information or an indictment charging the defendant with willfully and negligently failing to support his illegitimate child, the record of a bastardy proceeding instituted by the mother of the child in which the defendant was adjudged to be its reputed father is not admissible evidence.”

The per curiam opinion, Gee v. State, 60 Ohio St. 485, 486, is as follows:

‘ ‘ The record offered is not competent under the general rule that in a criminal proceeding the record of a civil action can not be introduced to establish the facts on which it was rendered. The judgments offered followed verdicts which might have been lawfully returned upon a mere preponderance of evidence. A higher degree of evidence was required to convict under the indictment and the information. ’ ’ Greenleaf, Evidence, Sec. 437; Britton v. State, 77 Ala. 302; Riker v. Hopper, 35 Vt. 457 [82 Am. Dec. 646].

In view of the foregoing authority, we hold that the judgments disallowing Shelley’s claims for compensation ought not to have been received in evidence. They were not admissible for any purpose, although it was discretionary with the court to allow or disallow the claim of $5,000 for compensation to the guardian. This could have nothing whatever to do with Shelley’s embezzlement of said amount before the guardianship began.

As to the $10,000 the adjudication, founded not upon the exercise of judicial discretion, but strictly upon proof, was nevertheless predicable upon a rule of evidence requiring only a preponderance instead of proof beyond a reasonable doubt. In other words, it required no production of the record of another case to show that Shelley was not (since he could not be) entitled to guardian’s fees September 28, 1904, not only before their allowance by the court, but before the guardianship began; neither does the fact that he was adjudged in a civil proceeding not to have earned $10,000 prior to the guardianship tend to prove in this proceeding that his claim to compensation in that amount on said date was unwarranted.

We hold, therefore, that the court erred in admitting said evidence, and in charging thereon as above indicated.

Third, we see no reason why the court should have refused the first and fifth special request to charge (bill of exceptions, 92 and 93) as follows:

1st. The nature of the crime of embezzlement is such that although money may be' received by an agent or servant from time to time as it .comes into his hands lawfully, there may be no completed crime of embezzlement until, having thus received several sums at different times, he finally refuses or is unable to account, for the aggregate amount.
“5th. The court instructs you that if the defendant has not concealed the receipt of the money alleged to have been embezzled, but has claimed in good faith to keep it under some right as against the owner, then he is not guilty of embezzlement, and your verdict should not be guilty.” Young v. State, 26 O. C. C. 747 (6 N. S. 53); 1 McClain’s Criminal Law, 641.

We do not understand that a demand for the property alleged to have been embezzled must in all cases have been made by the owner upon the accused, in order to lay a foundation for a prosecution. Befusal of such a demand, when properly made, would of course be evidence of conversion and embezzlement, except as circumstances might exist excusing such non-compliance. In this case, however, we fail to discover any evidences, except that which, as above indicated, is clearly incompetent, to show that Shelley had converted any part of the estate to his own use, or that he has failed to account for and pay over the same to those properly entitled thereto. With the incompetent eliminated, there is not enough left whereon to found a verdict of conviction. The several motions, including the motion for new trial by which this point was raised and saved, were erroneously overruled.

We have examined all the numerous rulings on evidence not already disposed of without finding any such prejudicial error therein as to warrant reversal upon that ground; but for errors above indicated, to wit, the admission in evidence of the record of the civil case or cases, the court’s charge with respect thereto, the refusal of the court to grant the first and fifth special requests to charge presented by the defendant below, and for overruling the motion for new trial' upon the ground that the competent evidence was not sufficient to warrant conviction, the judgment is reversed and the cause remanded.

Marvin and Winch, JJ., concur.


text:
    BILLS AND NOTES — MORTGAGES
    [Medina (8th) Circuit Court,
    May 23, 1911.]
    Thomas Ferriman v. The Savings Deposit Bank.
    1. Agreement to Release Endorser of Last Series of Mortgage Notes.
    One who has endorsed the last of a series of notes secured' hy mortgage upon an agreement that he is to be released from his endorsement upon the payment of the first note of the series hy the maker, his heirs or assigns, is not entitled to such relief upon payment of the first note out of the proceeds of sale of the mortgaged land upon foreclosure.
    2. Foreclosure on First of Series of. Mortgage Notes not Bar to Suit Against Endorser of Last Series after Due.
    To charge an endorser of the last of a series of notes secured by mortgage, it is to be deemed due according to its terms, irrespective of an agreement in the mortgage that all should become due upon failure to pay one; hence an adjudication in a foreclosure of said mortgage, brought against the maker and endorser of the notes before the endorsed note is due is hot a bar to another action against-the endorser after said note becomes due.
    Error.

      Lee Elliott and J. W.'Seymour, for plaintiff in error.

      Frank Spellman, for defendant in error.
   HENRY, J.

The action below was one brought by the bank against Ferriman on his guaranty and endorsement of two notes.

In the -common pleas- court, a jury was waived and this cause submitted to the court upon the petition, answer, reply and an agreed statement of facts, as appears by the bill of exceptions.

The court (sitting as a jury) found for the plaintiff, the Savings Deposit Bank Co., and rendered judgment against the defendant, Thomas Ferriman.

The plaintiff, in its petition, alleged the execution and delivery of the notes to the defendant Ferriman by Aubles; the transfer, guaranty and endorsement of same to the said bank; the demand a payment from said Aubles at the maturity of said notes; the failure of said Aubles to pay said notes at maturity; due notice of such failure to pay, given to Ferriman; demand of payment from Ferriman and his refusal to pay. All of these allegations were admitted to be true by the defendant, under the agreed statement of facts.

But Ferriman as a first defense alleged that these two notes were a part of a series of seven notes, six of $500 each and one of $200, given by said Aubles to said Ferriman and by him transferred to the bank; that at the time of said transfer the bank agreed to release Ferriman from his guaranty, upon the payment of the first $500 note of said series, by said Aubles, their heirs or assigns; that to secure the payment of said series of notes, a mortgage on real estate had been given by said Aubles to said Ferriman; and by him transferred to said bank; that said mortgage had been foreclosed and said first $500 note paid out of the proceeds of the sale of said mortgaged premises.

It is manifest that this payment was not one made “by said’ Aubles, their heirs or assigns” within either the letter or the intent of the guaranty’s terms.

The answer of Thomas Ferriman, plaintiff in error in the court below, set up as a second defense a determination of a prior cause in the same court, for the foreclosure of a mortgage, to which the mortgagors, John Auble, Harriet Auble and Thomas Ferriman were defendants, in which the notes on which this action was brought with other notes of the same series, were set out in separate causes of action, and in an additional cause of action the mortgage securing the series of notes was set out, and also a guaranty of $500 of the last notes of the series, being the same notes as the last notes of the series, upon which judgment is asked in this action. The amount claimed and the time for which interest is claimed was also set out, and in the final entry a finding was made of the amount due on the entire series of notes and the mortgaged premises were ordered sold and the proceeds applied on the amount found due and execution awarded for the balance. No mention was made of the defendant Thomas Ferriman on the final determination of that case, but the finding as to the amount due was only as to the defendant, John Auble, the summons in the action, which was served on all the defendants, including the plaintiff in error, advises them of the amount remaining unpaid, and date from which interest was claimed.

It is contended that this was a final determination of the rights of the parties in the foregoing action, and constitutes a judgment under the definition given in the Sec. 11528 G. C. As a judgment it is conclusive between the parties not only as to what was actually determined, but also as to every question that might have been litigated under the pleadings.

Not only was no finding made in the foreclosure ease of anything due from Ferriman, but nothing could then have been found due from him. On the exercise by the plaintiff of the right given it by the mortgage to elect that, on default of any payment, the entire series of notes should become due, the result was to mature the entire debt for foreclosure purposes only. The finding of the amount thus deemed due from the mortgagor "was likewise incident to the foreclosure, it being requisite to enable proper distribution to be made of the proceeds of sale. No such finding as against Ferriman was either requisite or proper. He could have no share of such proceeds. The last two notes, on which he was endorser or guarantor, had not matured as to him. It is expressly held in McClelland v. Bishop, 42 Ohio St. 118, that “to charge endorsers, such notes are to be deemed due according to their terms, irrespective of such stipulation in the mortgage.”

Since neither of Ferriman’s defenses is meritorious, the judgment must be and it is affirmed.

Marvin and Winch, JJ., concur.


author: MARVIN, J.

text:
    TAXES AND TAXATION
    [Summit (8th) Circuit Court,
    June 2, 1911.]
    Marvin, Winch, and Henry, JJ.
    Elias S. Day et al v. Arthur J. Week et al.
    City Board of Review has Power to Make Wholesale Increases in Valuation.
    A city board of review, under Sec. 5624 G. C. has power to make wholesale increases in the valuation of real estate in the city as fixed by the quadrennial appraisers, without making corresponding decreases.
    Error.

      Geo. M. Anderson and Charles Rowland, for plaintiff in error.

      F. J. Rockwell, C. T. Grant, N. M. Greenberger and J. Taylor, for defendant in error.
   MARVIN, J.

The petition in this appeal challenges the power of the Akron city board of review, under Sec. 5624 G-. C. to make wholesale increases in the valuations of real estate in said city, as fixed by the quadrennial appraisers, without making corresponding decreases. . We understand that the question of the constitutionality of the statutes involved is no longer pressed. If, however, it be relied on, it is sufficient now to say that no such clear case of conflict with any constitutional provisions is here presented as to warrant our so holding. On the question of notice, too, the opportunity afforded by law for a hearing, after the increases were resolved upon and made public, satisfies the constitutional guaranty of due process of law. The power of the board is then the sole question before us.

The present policy of the law is more clearly defined by the act approved March 2, 1911, Sec. 5624-1 whereof provides that:

“Boards of review-for municipal corporations sitting as boards of equalization and revision, shall have and exercise, in so far as the same may be applicable, all the powers and perform all the duties, and be governed by the same rule and limitations, conferred or imposed by the law upon the annual county boards of equalization of real and personal property,, moneys and credits, and quadrennial county boards of equalization of real property outside of cities, and such boards sitting as boards of revision, ’ ’ etc.

This act was not, however, in force when the increases complained of were made; but it may aid in the construction of the pre-existing law (Section 5624 G. C.), though phrased more concisely than Secs. 2819-1 R. S. must, unless the contrary is plainly intended, be deemed to be identical with it in meaning State v. Shelby County (Comrs.), 36 Ohio St. 326. It now defines the powers and duties of municipal boards of review as the same as those “provided by law for all other municipal boards of equalization and revision. ’ ’ It formerly defined them as the same as those “conferred upon or required of the annual city board for the equalization of the value of real and personal property, moneys and credits; the decennial city board, for the equalization of the value of real property; and~ the annual city board of revision; and the decennial city board of revision, under any and all laws now in force, pertaining to such municipalities.”

Sections 2815 and 2816 R. S., were, it is significant, left unrepealed by the General Code. They provide for decennial city boards of equalization with the same powers and duties as those of the decennial county board of equalization (Section 2814 R. S., Sec. 5598 G. C.). The county auditor was, by Sec. 2813 R. S. (Sec. 5594 G. C.), made a member of such board; and upon complaints filed with or preferred by him, or filed with the board as such, it was empowered, by Sec. 2814a R. S. (Secs. 5599-5601 G. C.), while sitting as a board of revision, to “increase or decrease any valuation complained of, and no others, ’' in accordance with the “laws in force governing the valuing of real property.”

This limitation, as to acting only upon complaints filed, does not, however, apply to the decennial county board of equalization sitting as such; the only express limitation upon them in that capacity being that “they shall not reduce the aggregate value thereof, as returned by the assessors, with the addition made thereto by the auditor, as hereinafter required. ’'. The municipal board of review is invested with all the powers of said county board in each of these capacities and it is clear, from Section 5598 G. C. (Sec. 2814 R. S.), that in their preliminary work, they may of their own motion raise values to conform with the standard required “by the laws in force governing the valuing of real property. ’ ’ Such is also the present provision of law as contained in, or contemplated by, the act of March 2, 1911, See. 5624-1. The increases here complained of were made in the primary work of equalization of the values tentatively fixed by the quadrennial appraisers, in order that, as finally determined, they should agree with the standard aforesaid.

We hold, therefore, that the petition makes no ease for enjoining the defendants from making the increases complained of. The demurrer to the petition was properly sustained upon the fifth ground. The third ground of demurrer was, also, we think well taken.

Judgment affirmed.

Winch and Henry, JJ., concur.


author: METCALFE, J.

text:
    WILLS
    [Cuyahoga (8th) Circuit Court,
    January 25, 1909.]
    Winch, Henry and Metcalfe, JJ.
    Judge Metcalfe of Seventh Circuit, sitting in place of Judge Marvin.
    Kate Fagan et al. v. Bridget Welsh et al.
    1. Testamentary Capacity Presumption Distinguished as to Guardianship for Drunkenness and Insanity or Imbecility.
    Guardianship on the ground of intemperance does not raise the same presumption of testamentary incapacity as would be the case if the guardianship rested upon the ground of insanity or imbecility.
    2. Ward Boarding with Relation Raises no Presumption of Undue Influence.
    The relation of a ward under guardianship for intemperance, to a person with whom she boards under an arrangement made by the guardian for her, though such person has received certain instructions from the guardian as to the care of the ward, is not the same as the relation of the ward to the guardian, and does not, of itself, raise a presumption of undue influence in an action to set aside a will under which such person is a beneficiary.
    Error.

      A. A. & A. H. Bemis, for plaintiff in error.

      P. II. Kaiser and Foran, Pearson & Powell, for defendant in error.
   METCALFE, J.

This action was brought by Kate Fagan, plaintiff herein, in the court below, to contest the will of Coena Murphy.

The errors complained of all relate to requests for instructions to the jury, and the general charge of the court. The question of the weight of the evidence is not raised, and the whole evidence does not appear in the record. There was a verdict and judgment in the lower court sustaining the will and this action is to reverse that judgment.

The facts, so far as they are necessary to an understanding of the questions raised, are as follows :

Coena Murphy was an orphan girl of about the age of 20 years at the time of the execution of this will. She was possessed of some property, consisting mostly of real estate in the city of Cleveland. Some time in 1905, Vm. T. Clark was by the probate court of this county appointed guardian of her person and property, under favor of Sec. 6317 R. S. (Sec. 11011 G. C.), on the ground that she was incapable of taking proper care of herself or her property by reason of intemperance. It appears also that before this appointment an application was made for the appointment of a guardian on the ground of mental incapacity, which failed or was withdrawn, as appears. In accordance with some understanding between the parties, Mr. Clark, upon his appointment as guardian, made an arrangement with the defendant, Bridget Welsh, to board and care for his ward, and from that time until her death, which occurred in June, 1905, Coena Murphy continued to reside with Mrs. Welsh. The will in question was made by someone in Mr. Clark’s office, a few weeks before Coena’s death, and gave all her property to' Mrs. Welsh. At the time Mr. Clark made his arrangements with Mrs. Welsh to take care of Coena, he gave her some general directions about the way she was to be taken care of.

There is no evidence in the record tending to show undue influence or mental incapacity, and the only questions raised in the case come from the refusal of the court to give certain requests to charge, made by plaintiff in error; the giving of certain requests made by the defendants, and alleged error in the general charge.

The fifth and sixth requests to charge before argument, raise this question: Did Mrs. Welsh stand in the same relation to Coena Murphy as her guardian to such an extent that the mere fact that Coena made her will in Mrs. Welsh’s favor raised a presumption that the will was procured by undue influence. And, if so, was the burden of the proof thereby thrown upon the proponents of the will to disprove undue influence on the part of Mrs. Welsh?

We are unable to see how the mere fact that Mrs. Welsh was employed and paid by Coena’s guardian to board and care for her could place her. in the same fiduciary capacity as the guardian himself. It is true that Mrs. Welsh took Coena into her house, probably treated her as a member of her family; perhaps was a mother to her. This family relation would undoubtedly be one of trust and confidence between Mrs. Welsh and Coena, which if there were any evidence tending in any way to show had been used by Mrs. Welsh to induce the making of the will, would undoubtedly raise a suspicion of unfairness and perhaps a presumption which it would be necessary to rebut.

This would be more particularly so if there were evidence tending to show mental weakness on the part of Coena. We do not think, however, that we are required to entertain a presumption of mental weakness on account of the guardianship alone. The guardian was appointed solely on the ground of Coena’s habits of intoxication and might be entirely consistent with the possession of testamentary capacity or even of extraordinary mental endowments. While the fact of the guardianship on the ground of intemperate habits would be evidence for the jury to consider as bearing on her mental condition, yet we do not think that the fact of the guardianship on this ground would raise the same presumption of testamentary incapacity as would have been the case had the guardianship rested upon the ground of insanity or imbecility, or any other form of mental weakness or disease.

There may have been evidence of mental weakness given at the trial, but that we know nothing about. We are deciding the question before us purely on the presumptions sought to be raised by the appointment of the guardian and the employment by him of Mrs. Welsh to take care of his ward and the relations of friendship and intimacy thus established. We do not think that the mere fact of employment of Mrs. Welsh and the friendly relations thus established, is sufficient of itself to raise a presumption of undue influence on the part of Mrs. Welsh, at least not without some evidence tending to show that such friendly relations were abused, or exerted in some way to influence the •making of the will. We do not think that Mrs. Welsh stood in the shoes of the guardian in this respect.

Supposing, however, that “we are wrong in this conclusion, and that a presumption of undue influence is raised against Mrs. Welsh by the fact.of her relationship to Coena Murphy. What is the degree of proof required to rebut the presumption? The issue in a will contest is simplified by statute to the single question : Is the paper in question the last will and testament of the testator? The party sustaining the will has the right to open and close the evidence and the argument. He must offer the will and order of probate thereof and rest his ease. The order of probate is prima facie evidence of the due attestation, execution and validity of the will. By these provisions of the statutes, which I have thus summarized, it is sure that the only burden resting on the party sustaining the will is to offer certain evidence which the law requires to make a prima facie case sustaining the will. The burden then rests on the contestants to prove something necessary to render the will invalid. Are the contestants relieved of this burden at any stage of the trial?

We think not. While it may happen that in the course of the trial some issue may arise, the burden of which would rest upon the party sustaining the will, the general burden of proof, as to those things which render the will invalid, does not change. The degree of proof required to. rebut a presumption is not a preponderance of' the evidence, but evidence equal in countervailing weight to the effect of the presumption. In Klunk v. Hocking Valley Ry., 74 Ohio St. 125 [77 N. E. 752] the action was by a locomotive engineer to recover for injuries sustained by the breaking of a water guage, the breaking of which raised a prima facie presumption of negligence. In the second proposition of the syllabus it is said:

“Proof of facts sufficient under the statute to create a prima facie presumption of negligence against the defendant east upon it the burden of producing evidence of equal weight or countervailing force, in order to control or destroy the presumption, yet proof of such facts does not impose upon the defendant the burden of establishing affirmatively by a preponderance of the evidence, that it was not negligent. ’ ’ Hutson v. Hartley, 72 Ohio St. 262 [74 N. E. 197].

We think these cases settle the question that the burden of proof in a will contest does not shift as to any question at issue necessary to establish the invalidity of the will. The contestants in the fifth, proposition to charge before argument, asked the. court to say that the same fiduciary .relation existed between the girl and Mrs. Welsh as existed between her and her principal, guardian, and this relation raises a presumption of undue influence and casts upon the proponents of the will the duty of showing by a clear preponderance of the evidence that there was not such undue influence, but that everything connected with the making and execution of the instrument was free from impropriety and unfairness.

We think the court was right in refusing to so charge. And proposition six was equally vicious.

Proposition four might possibly have been given to the jury without prejudice. It is, however objectionable in that it assumes the existence of other evidence of mental incapacity and' the probable existence of undue influence, and gives undue prominence to both these questions. Hence, there was no error in refusing to give it.

We think that the propositions submitted by the defendant were all applicable to the issues in the case, and were properly given.

Proposition one, made after argument, relates to the effect of the order of probate appointing a guardian for Coena Murphy, and the prima facie presumption of testamentary incapacity thereby raised. Conceding that the appointment of the guardian did raise this prima facie presumption, we think the request was faulty in confining the evidence to rebut the presumption too exclusively to June 2, the date of the execution of the will. In this it might have been misleading. It was the duty of the jury to look to all the evidence on the question of mental capacity, and then say whether or not at the time the will was made, she was of sound mind, etc. The jury might have understood from his request that they were confined to evidence relating only to June 2. So we think there was no error in refusing the request.

Request No. 2, after argument, is disposed of by our holding as to the numbers five and six before argument.

In regard to the general charge; the court, after properly defining the amount of capacity and the understanding which he must have of the extent of his property, his relation to the objects of his bounty, the effect of his will and the strength of mind necessary to perceive their obvious relations to each other, etc., used this language:

“Though he may not be able to understand and appreciate these matters in all their bearing as a person in sound and vigorous health of mind and body would do. ’ ’

This language is excepted to. The qualifying words “sound and vigorous” relate to the health of the mind. The mind may be enfeebled by age or sickness, indeed, if our learned physiologists are right, very few do possess perfectly sound and vigorous health of mind and body. And yet there may be testamentary capacity, and we think that the use of the phrase in question is entirely consistent with the rest of the charge on that question, and there was no error in its use.

The following language also is excepted to: “ The law gave to Coena Murphy the right to dispose of her property by last will and testament, lawfully executed, in any way she saw fit. ’ ’ And in this connection also the court said: “You are not at liberty to make a will for her. That was her right. You are simply to decide whether the one she has made was sanctioned by and fulfilled the requirements of the law.” Perhaps this language might be criticised in the way it is expressed, but it states the law correctly. Coena Murphy, if of sound mind, had a right to make a will. The question of soundness of mind was for the jury, and in view of the instructions on that point, we do not see how they could have been misled by the language used. It was perfectly proper for the court to impress upon the jury that they were not to be governed by their own ideas of what Coena ought to have done, but decide whether the requirements of the law had been fulfilled.

Referring to the paper in controversy as “the will” or “the will she has made” in that connection would not be calculated to mislead.

The part of the charge excepted to, relating to influence obtained over a testator by kindness, affection, friendly attention, etc., is conceded to be a perfectly correct statement of the law, and we see no reason why it should not have been given in this charge. The charge also is correct on.the burden of proof. In summing up the court said:

‘ ‘ If the contestants have proved by a preponderance of the evidence any one of these things as to which the burden of proof was on them, then you should return a verdict finding the paper produced not to be the last will and testament of the deceased, but if they have failed to prove any one of them to your satisfaction, by a preponderance of the evidence, you should in that case return a verdict sustaining the will.”

The expression “failed to prove any of them” would seem at first blush to have required the contestants to prove all of the claims made to invalidate the will. It is evident, however, that this is not what the court meant. The jury are told that if the contestants have proved any one of the things, the burden of which rested on them, they were entitled to a verdict setting the will aside, so that they could not without superhuman dullness have understood the subsequent expression used in that very connection, “failed to prove any one of them” to have meant that the contestants must prove all the claims.

The judgment of the court of common pleas is affirmed.

Winch and Henry, JJ., concur.


text:
    BENEFICIAL ASSOCIATIONS — INSURANCE
    [Cuyahoga (8th) Circuit Court,
    January 25, 1909.]
    Winch, Marvin and Metcalfe, JJ.
    Judge Metcalfe of Seventh Circuit, sitting in place of Judge Henry.
    Jane Abernethy v. Catholic Mutual Benefit Assn. (Sup. Co.) et al.
    Payment of Benefits to Beneficiary Intended by Deceased.
    When a mutual benefit association pays into court the fund due the beneficiary of one of its deceased members with the statement that there are rival claimants to the fund and asks the court to determine to which claimant it shall be paid, the fund will be ordered paid to the beneficiary clearly intended by the deceased member, though by irregular designation, circumstances over which he had no control and his death preventing a change in beneficiaries strictly in accord with the rules of the association.
    Error.

      Kerruish <& Kerruish, for plaintiff in error.

      Herman Preusser and Walter D. Meals, for defendant in error.
   METCALFE, J.

Defendant in error, plaintiff below, began this action by filing in the common pleas court a paper called a petition for an interpleader, to which Jane Abernethy, Jennie McCormick and Edna McCormick were made parties defendant.

The facts in this case, as far as it is necessary to state them in order to understand the issues, are, in brief, about as follows:

The defendant in error, as its name indicates, is a mutual insurance association. Charles E.' Abernethy was a member in good standing of said association, holding a benefit certificate therein for one thousand dollars, which became due and payable in sixty days after his death, on proper proofs and notice of death. Charles Abernethy died June 3, 1905. Jane A. Abernethy was his wife, and was named as beneficiary in the certificate. Jennie McCormick was a sister of Charles, and Edna McCormick was his niece. Shortly before his death Charles E. Abernethy attempted to revoke the direction in the benefit certificate, as to whom payment should be made at his death, by the execution of the following instrument:

“Cleveland, O., June 1, 1905.
“To the Catholic Mutual Benefit Association, Cathedral Branch, No. 33, Boll 148,
“I, Charles E. Abernethy, to whom a certificate was issued in said beneficial order, hereby revoke my former direction as to the payment of the beneficiary fund at my death, and now authorize and direct such payment to be made to my sister, Mrs. Jennie McCormick, residing at 59 Delaware street in the city of Cleveland, Ohio, and to Miss Edna McCormick, my niece, daughter of Mrs. Jennie McCormick, above referred to.
“Witness my hand the 1st day of June, 1905.
“Charles A. Abernethy.
“Witness:
“J. J. Wagner, 647 St. Clair St.
“Jane A. Abernethy, 59 Delaware street.”

The association claimed that it was unable to decide to whom the mortuary benefit belonged by reason of the conflicting claims of Jane Abernethy and the McCormicks, so paid the money into court and asked that the defendants be required to set forth their respective claims to the money, which, they did by way of cross-petition, and the only issues to be determined arise under the allegations of their several cross-petitions, and the answers and replies thereto.

Jane Abernethy claimed the money by virtue of her designation as beneficiary in the original certificate. Jennie McCormick and Edna McCormick claimed it by virtue of the instrument executed by Charles Abernethy June 1, 1905. So that the only question for this court to determine is, did the instrument executed by Charles Abernethy before his. death change -the beneficiary from Jane A. Abernethy, named in the .benefit certificate, to Jennie and Edna MeCormick?

The cross-petition of Jane Abernethy avers that Charles Abernethy for some time before his death had been addicted to the intemperate use of intoxicating .liquors; that he had for sev-. eral years contributed but little to hep support; that he- had become feeble bodily and mentally; that he had withput cause, acquired an aversion to her; that- his sisters and brothers had stirred him up to strife, and had by undue means and influence forced him into signing several transfers of property, among which was the instrument in question. It is not necessary for,us to go over all the evidence bearing upon these propositions. There is evidence tending to show failing mental powers- on the part of Charles Abernethy; there is evidence of excessive use. of intoxicants, and that he seemed to have an aversion to his wife, so far as appears from the evidence, without cause. But there is no evidence tending to show undue influence, and the mental weakness shown is entirely insufficient to. avoid said contract on that account. ■ • .

Section 5 of the defendant’s beneficiary fund law provides that “a member may at any time change, alter-or amend ,the designation of person or persons to whom the benefit named in the certificate is payable, by surrendering said certificate, after having filed or caused to be filed a blank for that purpose on the back of the same, providing for new designation (such designation must be within the class or classes of persons mentioned in Section 13 of the beneficiary fund law), and attach his signature to it. ’ ’

It was the duty of the secretary of the members branch to attach the seal of his branch to the certificate and forward it to the grand secretary, if in his immediate jurisdiction, and upon receipt thereof by the grand secretary, it became his duty to issue a new certificate.

It is conceded that Jennie McCormick and Edna McCormick come within the designation of Section 13 of the mortuary fund law as persons who may be made beneficiaries. None of the provisions of the above Section 5 were complied with literally. The benefit certificate was in the hands of Jane Abernethy, so that the new designation could not be made on the back thereof, and the assignment was made on a separate piece of paper, which was forwarded to the grand secretary, but before a new certificate could be issued, possibly before the assignment reached him, Charles Abernethy died.

That Charles Abernethy intended to change the beneficiary in said certificate is perfectly clear; that he had a right to do so is equally clear. It is insisted, however, that inasmuch as Charles Abernethy failed to complete the assignment or designation of a new beneficiary before he died and the forms prescribed by the above quoted Sec. 5 were not complied with, that such designation never took effect.

The parties to the contract of insurance are the insurance association and Charles E. Abernethy. Jane Abernethy had no vested interest in the benefit fund while Charles Abernethy lived; her interest only vested when he died. The law of the association relating to change of beneficiary is for the benefit of the insurance association. The association had an undoubted right to waive a literal compliance with its terms. The association is not claiming anything in this case because of such failure to comply with its terms. By starting this proceeding and asking that the controversy be settled between Jane Abernethy and the McCormicks, it seems to recognize the fact that the assignment by Charles Abernethy might be complete. However that may be, we think that under the law Charles Abernethy having, by the execution of this instrument expressed his intention to change the beneficiary, and having done all he could do to carry out the provisions of the law, his intentions, so expressed, should be carried out. The fact that he died before the formalities required by the law of the association were completed, does not affect the result. The execution of the instrument by him was the essential thing to effect the change of beneficiary; the forwarding of the instrument and the execution of a new benefit certificate were matters of detail. The issuing of a new certificate would have been a vain thing after his death.

The assignment was received by the association. The only objection that could have been made to it was the failure to surrender the benefit certificate. But the benefit certificate was in the possession of Jane Abernethy so that it could not be surrendered.

In the case of Supreme Conclave, Royal Adelphia, v. Cappella, 41 Fed. 1, it is said:

“In eases of policies of insurance or benefit certificates issued by mutual benefit societies, the beneficiary has no vested interest in the certificate until the death of the insured member. Up to this time the insured may change his designation of beneficiary at will, and against the consent of such beneficiary.
“The general rule that the insured is bound to make such change of beneficiary in the manner pointed out by the policy and by-laws of the association is subject to three exceptions: (.1) If the society has waived a strict compliance with its own rules, and, in pursuance of a request of the insured to change his beneficiary, has issued a new certificate, the original beneficiary will not be heard to complain that the course indicated by the regulations was not pursued. (2). If it be beyond the power of the insured.to comply literally with the regulations a court of equity will treat the change as having been legally made. (3). If the insured has pursued the course pointed out by the laws of the association, and has done all in his power to change the beneficiary, but, before the new certificate is actually issued, he dies, a court of equity will treat such certificate as having been issued.”

In Railroad Company v. Wolfe, a member of a railroad benefit association held a certificate in which his wife was named as beneficiary.. The wife died and he substituted her sister in the- manner provided by the laws of the association. He after-wards married after having made an ante-nuptial' agreement to designate his wife as such beneficiary. He died, however, before making the substitution, and the court held that the wife and not the sister, was to be treated as the-beneficiary. Also that the association-having paid the money into court and asked to have the matter settled between the contesting claimants, had waived its rights.

In Grand Lodge A. O. U. W. v. Noll, 90 Mich. 37 [51 N. W. 268; 30 Am. St. 419], 15 L. R. A. 350; it is said:

“A designation may be made by will of a new beneficiary to receive the fund to become due by reason of a certificate of membership in a mutual' benefit society, although the rules of the order provided for a change by endorsement on the back of the certificate, where through no fault of the member a certificate has become lost or mislaid so that a search for it, at his request, proves unavailing. ”

The cases cited are typically bearing, upon the issues involved in this case. It is needless to multiply the citation of authorities.

While it may be conceded that .the association might have insisted upon a compliance with its rules, yet it did hot do so. It began this proceeding, paid the money into court and withdrew from the contest, saying, in effect, to the‘-parties, fight it out between yourselves. We think this was a complete waiver of all objection to any failure to observe the formalities of the law of the association in the designation of the new beneficiary, and Charles -Abernethy having done all that he could to effect •the change, his clearly expressed intention to substitute his sister and niece for his wife as the object of his bounty will be carried out.

Judgment affirmed.

Winch and Marvin, JJ., concur.


author: TAGGART, J.

text:
    APPEAL — EJECTMENT—LIMITATIONS—REFORMATION OF INSTRUMENTS
    [Cuyahoga (8th) Circuit Court,
    May 17, 1909.]
    Henry, Winch and Taggart, JJ.
    Judge Taggart of Fifth Circuit, sitting'in place of Judge Marvin.
    Eugene Schawzenbash v. Emma B. Assmus et al.
    1. Action for Reformation of Instrument and Possession of Realty, Appealable.
    An action for the reformation of a deed or mortgage and recovery of the possession of the premises therein described, presents an issue not triable to a jury, and is appealable.
    2. Limitations in Ejectment by Assignee of Unrecorded Mortgage Runs from. Maturity of Note Secured.
    In an action in ejectment brought by the assignee of a mortgage which was not recorded until long after condition broken, the statute of limitations begins to run upon maturity of the note secured by the mortgage.
    Appeal.

      A. J. Martin, for plaintiff.

      H. L. Smith, for defendant.
   TAGGART, J.

This ease is in this court by appeal from the court of common pleas, and the first question that is presented is upon the motion of the plaintiff to dismiss the appeal herein for the reason that the case is not appealable under the statute.

It is contended on behalf of this motion that this is an action for the recovery of specific real property, and that under Sec. 5130 R. S. (See. 11379 G-. C.) the same is triable to a jury unless a jury be waived. That while the second amended petition seeks a reformation of the mortgage which the plaintiff is asserting in respect to lot 65, no reformation is sought by the action in respect to lot, or a portion of lot 64. But as we construe the description contained in the petition which, it is alleged, is a correct description of the premises, the manifest intention was to describe one parcel or lot of land and not two distinct parcels; therefore, it was necessary to have a correction of this description through the aid of equity before the plaintiff' could secure possession of this real estate. That being the ease, we think the case is ruled by the ease of Rowland v. Entrekin, 27 Ohio St. 47:

“In a civil action, where the facts stated in the petition, and the nature of the relief primarily demanded are within the sole jurisdiction of a court of equity, neither party can, of right, demand that the issues of fact made by the pleadings touching the plaintiff’s right to such relief, shall be tried by a jury; and, therefore, after final judgment, adverse to the plaintiff, in the court of common pleas, he may appeal such a case to the district court.
“And this right of appeal is not affected by the fact that the plaintiff also demands a money judgment by way of damages to which he may incidentally be entitled, as a result of his obtaining the equitable relief sought.”

See also the case of Ellsworth v. Holcomb, 28 Ohio St. 66, 69.

The motion to dismiss the appeal is overruled, with exceptions.

The case is also submitted upon the pleadings. The answer to the second amended petition, among other things, pleads the bar of the statute of limitations ; that more than twenty-one years have elapsed since the right of action accrued upon said mortgage.

It is claimed by the counsel for plaintiff herein that while this mortgage was executed in 1875, that it was not recorded until 1896, and that as to third parties, it only took effect from the date of the filing of the same with the recorder of the county.

This is not in accord with our views of the case, or with the authorities as we understand them.

The plaintiff seeks to recover possession of this property under this mortgage by reason of the fact of the condition therein being broken and that he is entitled to recover the possession of the premises described therein.

It appears from the pleadings that the mortgage was given in 1875 to secure a note which became due in 1876. At that timé the condition contained in the mortgage was broken and the right of the mortgagee to bring ejectment thereby accrued. The statute of limitations at once began to run and having once commenced to run nothing appears in this record that would stop the running of the statute.

In the case of Bradfield v. Hale, 67 Ohio St. 316 [65 N. E. 1008], the court lays down the rule, as follows:

“As between the mortgagor and mortgagee, in a mortgage on real property, after condition broken, the legal title to the mortgage premises is in the mortgagee, and he may elect, either to sue for foreclosure and sale, or bring ejectment to recover possession of the premises.
“If his action is in ejectment, the statutory bar of fifteen years as provided in Sec. 4980 R. S. (Sec. 11221 G. C.), does not apply. The bar is such case is twenty-one years as provided in Sec. 4977 R. S. (Sec. 11219 G. C. el seq.).”

By the assignment to the plaintiff by the original mortgagee no higher rights were derived by the plaintiff than existed in said mortgagee, and the statute having commenced to run as against an action in ejectment against said mortgagee the same continued against the plaintiff herein, and upon the pleadings herein the defendant was entitled to judgment.

The judgment of the court is that the defendants herein should recover of the plaintiff their costs herein expended, and plaintiff pay his own costs.

Henry and Winch, JJ., concur.


author: TAGGAET, J.

text:
    CHARGE TO JURY
    [Cuyahoga (8th) Circuit Court,
    May 17, 1909.]
    Henry, Winch and Taggart, JJ.
    Judge Taggart of Fifth Circuit, sitting in place of Judge Marvin.

      E. Shriver Reese v. The Mannen & Esterly Company.
    Erroneous Charge as to One of Several Issues Held not Prejudicial.
    When there arfe several distinct issues in a case, the overruling of a motion to properly direct the jury upon one of them is not prejudicial, unless such motion was in regard to a controlling issue in the case; whether such issue might or might not he controlling, depends upon the issues before the jury.
    Error.

      E. J. Pinney, for plaintiff in error.

      Smith, Taft & Arter, for defendant in error.

      Affirmed no opinion, Reese v. Mannen Co. 83 Ohio St. 448.

   TAGGAET, J.

The only error complained of in oral argument by counsel for plaintiff in error was the failure of the trial court to properly instruct the jury in respect to the durability of a furnace which was involved, in the case. The petition in the common pleas court was on an account for $39. The answer, in respect to the account, denied that there was $39 due the plaintiff, but admitted that there was $9 due ánd no more. The defendant further answered and by way of counterclaim alleged a warranty in respect to a gas furnace which he claims the plaintiff below agreed to install in his house, and as a part of said contract, warranted that' said furnace would comfortably heat said house in zero weather without crowding, and as a further part of said contract guaranteed that said furnace was well made and of good material and would last for several years, and would not need repairing.

Plaintiff in its reply denied that there was any warranty or guaranty in respect to said furnace.

The bill of exceptions does not contain all the evidence that was heard in the court of common pleas. It is stated that there was only so much of the evidence brought into the bill of exceptions as would have a tendency to show the errors complained of; that is, that there was evideneé introduced in behalf of the defendant below that there was a warranty or guaranty of durability, and that the failure of the court to charge in respect to the durability of the furnace was erroneous and prejudicial.

But we think, taking the charge of the court as an entirety, that .the court does charge in respect to the construction and durability of this furnace, and while it is not so clear and explicit in that, regard as might be desired, yet there was no request to the trial court tó more explicitly charge the jury in that' regard. The court does charge as to the words or expressions that are necessary to constitute a warranty, and this charge is as applicable to the warranty of durability as to the warranty of affieiency on the part of the furnace to be installed, and the jury were at liberty to appropriate these instructions as to that issue in the case as well as to the other. It is said that the question of the efficiency of the furnace, as to its heating the houses comfortably in zero weather, was abandoned by the defendant in the trial of the case. The bill of exceptions does not so advise us. True, the defendant himself in his testimony admits that after the second furnace was'put in, the house was heated quite satisfactorily. But that admission in the trial of the case is quite different from the abandonment of a defense filed in the case; so that, so far as the bill of exceptions discloses, the case proceeded upon the defense made in the answer of the warranty of efficiency and warranty of durability and the court’s charge was upon the issues as' made.

With these two claims on the part of the defendant that there was a warranty of efficiency and a warranty of durability, even assuming that .the charge is not clear and explicit in respect to the latter, yet we hold that there was no prejudicial error. The jury may have found that there was a warranty as alleged in respect to the heating' of the house and may have found that there was no warranty in respect to the durability. The reply made an issue on both of these propositions. • The verdict is a general verdict.

Where there are several distinct issues in a case, the overruling of a motion to properly direct the jury upon one of them is not prejudicial, unless such motion was in regard to a controlling issue in the case; whether such issue might or might not be controlling depends upon the issues before the jury. See Clark v. Clark, 8 Circ. Dec. 752 (16 R. 108); Beecher v. Dunlap, 52 Ohio St. 64, 65 [38 N. E. 795]; McAllister v. Hartzell, 60 Ohio St. 69 [53 N. E. 715] and Sites v. Haverstock, 23 Ohio St. 626.

Finding no error in this record to the prejudice of the plaintiff in error, the judgment is affirmed with costs, and remanded.

Henry and Winch, JJ., concur.


author: WINCH, J.

text:
    APPEAL — JUDGMENTS—PLEADING—TEIAL
    [Cuyahoga (8th) Circuit Court,
    November 13, 1911.]
    Marvin, Winch and Henry, JJ.
    K. B. Co. v. George Dixon.
    1. Power of- Common Pleas to Consider Petition Filed out of Rule without Order First Made.
    In an action appealed from a justice of the peace to the common pleas court, since the latter court has power to grant leave to file a petition out of rule, it has power to take up and consider it when it is filed out of rule, without first making an order on the subject.
    2. Vendee may Rescind and Recover Amount Paid on Contract.
    When a vendee of personal as well as of real property has a right, in consequence of the conduct of the vendor, to rescind, he may do so and recover back in an action for money had and received, the amount paid upon the contract.
    3. Allegation of Amount Due Being Material and Specific Judgment Rendered for Amount without Proof of Amount.
    When the allegation in a petition of the amount due is material and specific and not, in the sense in which those words are used in Sec. 11329 G. C., an ¿negation of value or damage, the action being on an implied contract for the payment of money only, and within the exception of Sec. 11357 G. C., under the provisions of Sec. 11329 G. C., it must be controverted by answer, and if not, the court, in the exercise of its discretion, has power to render judgment without proof of the amount.
    4. Default Judgment only Rendered when Reached in Regular Order or Special Assignment.
    Section 11592 G. C. authorizing judgment as upon default in certain eases, does not contemplate the entering of a default judgment at any time during the term after the defendant is in default for answer, as provided by Section 11383 G. C., but only when the ease is reached in its order or on special assignment.
    Error.

      H. A. Kangesser, for plaintiff in error.

      E. W. Dissette, for defendant in error.
   WINCH, J.

Error is predicated in this action npon the refusal of the common pleas court to vacate a default judgment rendered within the term.

The case was originally started in a justice court, where George Dixon sued the K. B. Co. for “money had and received.” He recovered judgment on January 31, 1911. The defendant appealed.

Section 10398 G. C. provides:

“The rule day for filing the petition in the court of common pleas in a case appealed from a justice of the peace shall be the third Saturday after the expiration of the time limited for filing the transcript; and the subsequent pleadings shall be filed within such times thereafter as is provided for the filing thereof in cases commenced in that court after the return day of the summons.”

Dixon should have filed a petition in the common pleas court by February 25; he did not file it until March 30, 1911. The third Saturday after that, when the answer was due, was April 15; the default judgment complained of was taken the following Monday, April 17.

It is first claimed that the judgment is erroneous because the plaintiff did not file his petition so soon as he should have filed it. This contention is disposed of by the ruling in Parker v. Haight, 7 Circ. Dec. 609 (14 R. 548,) which we follow.

It is next claimed that the cause of action stated in the petition varies from that set up in the bill of particulars, and that it was not such an action as permitted a default without the taking of evidence.

Neither of these points is well taken. The petition set forth that the plaintiff had purchased an overcoat of the defendant and paid down four dollars of the purchase price, but the defendant refused to deliver the overcoat, and the plaintiff therefor asked judgment for his four dollars. This was an action for' money had and received.

It was said by Judge Hitchcock in the case of Welsh v. Welsh, 5 Ohio 425, 428:

‘ ‘ The law is well settled that where a vendee has a right in consequence of the conduct of the vendor, to rescind, he may do it and recover back, in an action for money had and received, the amount paid upon the contract. ’ ’

That was an action concerning the sale of real estate, but the rule is the same in the case of the sale of a chattel.

Underlying this action is an implied contract; if another has money which in equity belongs to me, the law implies a contract to pay it to me. This proposition is important, and authorizes the paraphrasing of a paragraph found in Dallas v. Furneau, 25 Ohio St. 635, 638, as follows:

“The' allegation in the petition of the amount due is a material allegation and is not, in the sense in which those words are used in Sec. 11329 G. C., an allegation of value or damage, but is a specific allegation of the amount due, the action being on an implied contract for the payment of money only, and within the exception of Sec. 11357 G. C., and therefore, under the provisions of Sec. 11329 G. C., must be controverted by the answer. In this case, the material allegations of the petition not haying been controverted by the answer, the court, in the exercise of its discretion had power to render the judgment- without requiring proof of the amount.”

This brings us to an application of See. 11592 G. C., -which provides that when all or a part of one or more of . the causes of action set out in a pleading are not put in issue by answer, or otherwise, judgment may be taken, as upon, a default.

If it is claimed that.this section applies only to cases where a part of the cause or causes of action is admitted and part denied, as set forth-in Weaver v. Carnahan, 37 Ohio St.. 363, the answer .is that the statute- has been amended since said decision.

The plaintiff in this case, then, was entitled to judgment, as upon default. That does not-mean that he.was. entitled to a default judgment at any time during -the term after the defendant was in default for answer, as provided in See. 11383 G. C., because his action was not one of those mentioned in that section, but he was entitled to judgment as upon default, when his case was reached in its order or on special assignment, as provided in Sec. 11384 to 11388 G. C. inclusive.

It is claimed that this case was not reached in its order or specially assigned. The transcript does not show a special assignment; but, as there is no bill of exceptions, we do not know that the ease was not reached in its regular order. We must therefore presume that the case was not disposed of in advance of the proper time.

Judgment affirmed.

Marvin and Henry, JJ., concur.


text:
    BILLS AND NOTES
    [Cuyahoga (8th) Circuit Court,
    November 13, 1911.]
    Marvin, Winch and Henry, JJ.
    C. H. Salmons v. A. J. Brockett et al.
    Waiver of Demand and Notice of Nonpayment and Dishonor not Alleged by Statement that One Endorser Offered Certain Notes because Maker Could not Pay.
    In an action on a promissory note waiver by .evidence of notice of dishonor and nonpayment and demand is not sufficiently alleged by a statement that on a day just prior to maturity of the note one of three endorsers offered a renewal note with the same endorsers for part and the note of another for the balance of the amount of the original note, with a statement that the maker of the original note..could not pay it,-requesting that a new note be accepted in place of the original note, which request was refused.
    Error.

      Griswold & White, for plaintiff in error.

      Jud'son■ <& Weld, for defendant in error.
   WINCH, J.

The question in this ease is whether'a demurrer by defendant Brockett to plaintiff’s amended petition was properly sustained.

It declares upon two promissory notes for $2,200 each, both executed July 20, 1904, by the Cleveland Printing & Publishing Co., payable to the plaintiff four months after date, which would be November 20, 1904, and both endorsed by defendants, W. M. Day, F. J. Staral and A. J. Brockett.

The question raised by the demurrer‘is whether said petition sufficiently alleges that notice of dishonor and ‘ demand were waived by the endorsers.

On this point the petition reads as follows:

“Each of said endorsers waived the notice of dishonor and nonpayment and demand required by the statute to be given them in this, to wit: That on or a day or two prior to November 20, 1904, the date when the within notes became due, W. M. Day, one of the three endorsers to the aforesaid notes, and the president and treasurer of the Cleveland Printing & Publishing Co., brought three renewal notes, two for two thousand dollars ($2,000) each, dated November 20, 1904, with the same endorsers on the back, and one for four hundred dollars ($400) endorsed by Luther Allen, and requested this plaintiff to accept said three notes in place of the two original notes herein described, and stated to this plaintiff that the Cleveland Printing & Publishing Co., of which he was the president and treasurer, could not pay the original notes above set forth when due on November 20, 1904. This plaintiff thereupon rejected and refused to accept the renewal notes.”

The law on this subject is now found in Secs. 8187 and 8214 Cl. C.

Section 8187 provides that presentment for payment is dispensed with by waiver, express or implied.

Section 8214 reads as follows:

“Notice of dishonor may be waived either before the time of giving notice has arrived, or after the omission to give due notice. The waiver may be express or implied.”

It is claimed that in this case the waiver of demand was implied from the knowledge of the endorsers that the notes would not be paid at maturity, waiver of notice of dishonor from the conduct of the endorsers in offering renewal' notes endorsed by themselves.

The first point is not well taken. It was held in the case of Bassenhorst v. Wilby, 45 Ohio St. 333 [13 N. E. 75]:

“The known insolvency of the maker, and that he himself can not pay, does not dispense with the necessity of presentment for payment in order to fix the liability of the endorser. ’ ’

The second point, waiver of notice of dishonor, may be implied, as quoted by counsel for plaintiff, from Boyd v. Toledo Bank, 32 Ohio St. 526 [30 Am. Rep. 624] “if- the conduct on the part of the endorser toward the holder of the note is calculated to put a person of reasonable prudence off his guard, or induce him to omit demand, or to give notice of dishonor.”

But was there any such conduct in this case ? What did the endorsers do? They offered two renewal notes for part of the sum due, and a note endorsed by Luther Allen in payment of part of it. This the plaintiff refused to accept. It does not appear that Brockett was promptly notified that these three notes were not accepted. Was he not hereby lulled into temporary security instead of plaintiff’s being put off his guard?

In the case last cited, Boyd, when asked by one of the makers to endorse a renewal note, which it had agreed to accept in payment of the note sued upon, promised to do so, and told the maker to leave the note at the bank and he would come in in a few days and endorse it.

The note was left at the bank, and it was informed of Boyd’s agreement. The day for demand and notice went by, the bank relying upon Boyd’s promise to endorse the renewal note. He afterwards refused to endorse it. Judge Wright delivering the opinion, justly remarks: “Had he kept his word and endorsed the note on Monday, the necessity of notice and protest was waived.”

But had the bank not agreed to accept a new note endorsed by Boyd, it would not have been misled by Boyd’s failure to go in on Monday and endorse the note. So here plaintiff was in no way misled by the tender of the new notes endorsed by Brockett, for he refused to accept them, and had plenty of time after his refusal to demand payment of the original notes, and give notice of their dishonor.

The case of Jenkins v. White, 147 Pa. St. 303 [23 Atl. 556] is cited by counsel for plaintiff as sustaining his claim. The syllabus of the case reads as follows:

‘ ‘ The offer of a renewal note with the same makers and endorsers as the original note, constitutes a waiver of protest. Such an offer shows that the endorsers did not expect the original note to be paid at maturity, and they could not have been injured by the failure to give notice of its non-payment. ’ ’

This is not in accord with the Ohio rule announced in Boyd v. Toledo Bank, supra, which bases the waiver upon the fact that the holder was misled by the conduct of the endorser and not upon the fact that the endorser is not prejudiced by the failure to give notice. The latter, in Ohio, at least, is entitled to stand upon his legal rights, unless his conduct was misleading to the holder to his prejudice.

The case is also distinguishable from the case at bar in that tbe renewal not tendered was identical with tbe original note in amount-. Here tbe endorser tendered new notes.for only part of the original notes, expecting the balance thereof to be paid by tbe Luther Allen note.

Tbe case of First National Bank v. Weston, 49 N. Y. Supp. 542, was upon the original note, although destroyed upon the giving of a renewal note with the same endorsers, and although there had been many subsequent similar renewals, all accepted by the bank. Of course, notice of dishonor of the first note was waived, for the holders acted upon the proposal of the endorsers. The case is in line with the Boyd case.

The case of May v. Boisseau, 8 Leigh (Va.) 164, is in point and in line with the Ohio cases.

The demurrer to the amended petition was properly sustained, and the judgment thereon is affirmed.

Henry and Marvin, JJ., concur.