author: Richards, J.

text:
    MAINTENANCE OF ELECTRIC LIGHT POLES BY PRIVATE COMPANY IN FRONT OF RESIDENCE PROPERTY.
    Court of Appeals for Lucas County.
    Ellen Huss v. Toledo Railways & Light Co.
    Decided, June 7, 1915.

      Municipal Corporations — Erection and Maintenance of Electric Light Poles by Private Company — Can Not be Enjoined by Abutting Owner — Location of Poles Within the Discretion of the Municipal Authorities.

    1. A private company may erect and maintain in the streets of a municipality electric light poles and wires -for lighting the public streets under a contract with the city; such construction does not invade the rights of an abutting owner, and such owner can not maintain injunction proceedings, even though a portion of the’ current carried is for private purposes, provided such additional use does not impair the abutter’s property in any essential degree.
    2. The location of poles and wires for lighting the public streets rests with the city authorities, and will not be interfered with by the courts in the absence of fraud or an abuse of discretion!

      Charles A. Thatcher, for plaintiff.

      Tracy, Chapman & Welles, contra.
   Richards, J.

This action was commenced by filing a petition in the court of common pleas on April 30, 1915, seeking to enjoin the defendant from erecting poles and stringing wires thereon in front of the property of the plaintiff on Williams street in the city of Toledo. To this petition the defendant filed an answer in which it avers that it has a contract with the city of Toledo, by the terms of which it is to furnish street lights for the streets, boulevards and parks in the city of Toledo, and is proceeding to erect a line on Williams street for that purpose, having received a permit therefor from the proper officials of the city. The defendant further avers that no wires are to be placed on the line of poles except such as carry current for the above purposes.

The evidence discloses that the plan of construction involves the placing of only one pole in front of the premises of the plaintiff, and the precise location of that pole has been heretofore fixed by order of this court. It appears further from the evidence that the plan involves the placing of eleven high tension wires to be used almost, if not entirely, for street lighting purposes. The poles are also to carry four, wires composing a 3-phase, 60 cycle, A. C. Circuit, carrying 4600 volts. No serious question can be made as to the right of the defendant to construct the line in the place located, for the purpose of street lighting, including the eleven wires carrying current for arc lights; but it is strenuously insisted that the defendant has no right to erect or maintain the four other wires which are used not only for street lighting, but for other private purposes. The evidence discloses that these four wires compose one circuit and that such method is proper for good construction. It appears that the current from these four wires is used for lighting the streets, the drives, walks and buildings in Walbridge Park; the union depot and the grounds and streets adjoining the same; and also for general lighting of the fire departments on Broadway, and lighting and power at the waterworks station on Broadway, and general distribution of incandescent lighting in the vicinity of Broadway and extending to Glendale avenue. None of the wires named will carry current to be used solely for private incandescent lighting, nor solely to carry energy for private power plants. On the contrary, the four wires named serve a dual purpose, one of the chief purposes being the lighting of the public streets in that portion of the city. It does not appear from the evidence that the use of a portion of this current for private purposes has necessitated, or will necessitate, any larger poles or wires, or a greater number of wires or cross-arms.

We assume that the defendant has the right in this state, without any doubt, to erect and maintain a line of poles and wires for the purpose of lighting the public streets of the municipality, and the question here for determination is whether that right is in any wise curtailed by the fact that the same line of poles and wires carries current which is used in part for private purposes. The leading case in Ohio on this matter is Callen v. Light Co., 66 Ohio St., 166. In that case it was announced by the court that it was a diversion of the street from the purposes to which it was dedicated, for a private lighting company to erect poles and string wires thereon of electric light cable lines for furnishing light and energy to private takers. It was further held in that case that this diversion of the street from the purposes for which it was dedicated was not relieved against by the fact that a fire alarm box used by the city was placed on the pole erected adjacent to plaintiff’s property. It is true that the question to be determined in the case of Callen v. Electric Light Co., supra, was not precisely the same as that which we have for determination, because in that case the company had no contract for lighting any of the streets of the city in the neighborhood where the plaintiff’s property was located, nor was it in fact furnishing or proposing to furnish any such service at that place, and hence it could not claim the right to erect or maintain the line of poles and wires at that place for street lighting purposes. In the consideration of that case the Supreme Court, speaking through Spear, J., discusses in detail the question now under consideration in the instant case. It is said in the course of that opinion that the case it to be determined by a consideration of the question whether or not the acts of the defendant complained of constitute in an essential degree a taking of property within the meaning of the Constitution, and it is further stated by the court, in substance, that the defendant did not have the right tó place permanent erections in the street in front of the plaintiff’s property if by so doing, it in any appreciable degree impaired the owner’s access to the lot, or otherwise interfered with the full enjoyment of the lot for all purposes to which it was adapted, or of the street itself. It must be borne in mind, in considering the discussion of that case and the conclusion reached by the court, that it had under consideration a case in which the electric lighting provided by the defendant was not of the streets, but that it was wholly for private use and, therefore, was not in any sense a street purpose, but was solely a private one. The fundamental principle was stated by the court that the city’s control of the streets is confined to street purposes and is not for general municipal purposes. Nevertheless, the court used this language on page 180:

""Whatever is a necessary incident to that use, the city may provide. Sewers, for instance, drain the surface water and thus relieve the streets from impairment and destruction, and in this respect sewers are for a street purpose; while, in addition, they may drain abutting property, thus tending to promote the public health, and in this respect they serve a municipal purpose. The same may be said as to water supply for cleansing and sprinkling the streets, and by owners of property abutting for cleaning and domestic uses, and for the extinguishment of fires. Light, also, is necessary for street purposes, and is convenient for the use of citizens, thus serving two'uses, one a street purpose and the other a municipal purpose. ’ ’

The fact that fire alarm apparatus was a strictly municipal convenience was held not to justify the construction, for it was apparent that this apparatus might properly be constructed on a short post in an unobjectionable location. The language above quoted is a clear declaration by tbe Supreme Court that poles and wires constructed for purposes of furnishing light for the public streets may serve as well a dual purpose, and if such dual purpose did not result in impairing the plaintiff’s property in any essential degree, or to any appreciable extent, then injunction would not lie.

The doctrine is well announced in 1 Joyce, Elec. Lew (2d Ed.), Sections 233, 276 and 333. The author of that work in an illuminating discussion of the question, reaches the conclusion that if a line of poles and wires is erected for the purpose of lighting the public streets, it is not an additional burden that the same line also carries current used for private purposes.

We conclude from the evidence in this ease that no appreciable or essential additional burden is cast upon the plaintiff’s property by the fact that a portion of the current which is carried on some of these wires is used for various, private purposes.

It is insisted by the plaintiff that the line of- poles and wires should have been constructed on another street or on the opposite side of Williams street. No abuse of discretion is shown on the part of the city authorities in locating the line at the place where it has been located, with the pole in front of plaintiff’s property placed where directed by this court, and we apprehend the true rule to be that in the absence of fraud or an abuse of discretion, a court will not interfere with the action of the municipal authorities on that matter. Of course, the right of the defendant to maintain this line could only extend for the time during which it supplies light for lighting the public streets of the city.

The injunction will be so modified as to allow the erection and maintenance of the pole on plaintiff’s property at the place indicated, only, and in other respects will be dissolved.

Chittenden, J., and Kinkade, J., concur.


source: Caselaw Access Project

author: Gorman, J. Jones (E. H.), P. J.,

license: Public Domain

text:
    VALUE OF A BOY’S'LEG.
    Court of Appeals for Hamilton County.
    The Cincinnati Traction Company and The Adams Express Company v. John Wynne, Guardian of James Russell Wynne, an Infant.

    Decided, July 6, 1915.

      Negligence — Joint Tort Feasors — Determination as to the Liability of Both or Either — Joint Enterprise — Fellow-Servant—Charge of Court — Damages, for Loss of a Leg by a Boy.

    1. The negligence of the driver of an express company’s wagon can not he imputed to the wagon boy, who was to some extent under the direction of the driver, and whose business it was to keep watch that no packages were lost or stolen; nor can it be said that the driver and boy were engaged in a joint enterprise; and as to whether or not they were fellow-servants was a question properly left to the jury under the evidence adduced.
    2. Where two parties have been made defendants as joint tort feasors, the question may properly be submitted to the jury whether the injury complained of was due to the concurrent negligence of both, or whether it was caused by the negligence of either.
    3. The court regards a judgment of $10,000 in favor of a fourteen year old boy for the loss of a leg as excessive, and the plaintiff below is given the choice of acceptance of $7,500, or a reversal.

      Robertson & Buchwalter, for Adams Express Co.

      George H. Warrington and Robert 8. Marx, for Cincinnati Traction Co.

      Littleford, James, Ballard & Frost, contra.

       Affirming Wynne, Guardian, v. Cincinnati Traction Co., 18 N.P.(N. S.), 409, with the exception of the amount of damages to be allowed.

   Gorman, J.

On November 7, 1911, about 6:30 p. m., a street car of the Cincinnati Traction Company and a wagon of the Adams Express Company collided at the corner of Ninth street and Freeman avenue in the city of Cincinnati. As a result of this collision James Russell Wynne, a fourteen year old wagon boy employed by tbe Adams Express Company, was thrown from the wagon and sustained injuries which required the amputation of his left leg about three inches below the knee. John Wynne, his guardian, commenced this action against both defendant companies as joint tort feasors.

The plaintiff in his petition alleged that the boy was injured as the result of the concurrent negligence of the two defendant .companies and that the negligence of both was the proximate cause of the boy’s injuries. It was claimed that the negligence of the traction companjr’s employee consisted in running the car ht a high and excessive rate of speed without giving any warning of its approach and without the motorman being on the lookout and without having his car under proper control. Plaintiff alleged that the negligence of the Adams Express Company was that the driver of the wagon upon which the boy was riding, was in driving at a high and reckless rate of speed and that the driver failed to keep a lookout when approaching the crossing at Ninth and Freeman streets. The boy was standing upon the rear part of the wagon, which was heavily loaded, where it was his duty to stand as assistant to the driver of the wagon. When the collision occurred the wagon was struck near the left hind wheel and the boy was thrown under the wheels of the street car and his left leg was badly mangled, so that an immediate operation and amputation were necessary.

Upon the trial of the- case the jury returned a verdict in favor of the plaintiff as guardian of James Russell Wynne in the sum of $15,000. The trial court on the application for new trial found the verdict excessive in the sum of $5,000, and decided that a new trial would be granted unless the plaintiff would consent to a remittitur. Plaintiff accepted this reduction and judgment was entered in his favor for $10,000. The cause is now in this court on error to reverse the judgment of the court of common pleas.

The Cincinnati Traction Company, plaintiff in error, claims that tbe negligence of the express company’s driver was the sole proximate cause of the boy’s injury, while the Adams Express Company claims that the sole proximate cause of the boy’s injury was the negligence of the motorman of the traction company.

This is one more instance of the thousands which have occurred since the comedy enacted by Adam and Eve in the Garden of Eden, where each sought to excuse misconduct by shifting the blame on to the other or the serpent.

We are satisfied that each of the plaintiffs in error has demonstrated that the other was guilty of negligence proximately contributing to the injury of the boy. We think the evidence in this ease was sufficient to warrant the jury in finding that the negligence of both the traction company’s motorman and the express company’s driver contributed directly and proximately to the injuries of this boy. The negligence of the driver of the wagon could not be imputed to the boy. He had no part in the driving of the wagon nor any control over the driver; his place was on the rear end of the wagon, and he was standing there when he was injured.

It was proper to submit the question to the jury, as the court did, whether or not the boy’s injury was the result of the concurrent negligence of the two defendants below or whether it was the result of the negligence of either.

It is claimed by the traction company that the driver of the wagon and the wagon-boy who was hurt were engaged in a joint enterprise, and therefore the boy can not recover if his injury was caused or partly caused by the negligence of the driver of the wagon.

We are unable to say on the evidence in this case that the boy and the driver of the wagon were engaged in a common enterprise because they happened to be employed by the same employer and were both upon the wagon at the time the boy was injured.- There was evidence tending to show that the driver of this wagon had authority and direction over the boy and that he was the assistant to the driver, and that the driver gave orders to the boy as to what he was to do. We think the jury were warranted in finding that the driver was a superior of the boy and stood in the place of his employer, the Adams Express Company, in his relation towards the boy. The boy had nothing to do with the driving of the team; he was not even sitting upon the front seat with the driver. No part of his duties required him to either drive the team or to keep a lookout for the driver. Pie had no interest whatsoever in the driving of the team, and we can see no application in this case of the rule laid down in Kistler v. R. R. Co., 66 O. S., 326. If the boy and the driver had owned the wagon and were using it in the prosecution of their joint business, then there might be some foundation for the claim that they'were engaged in a joint enterprise. Railway Co. v. Fippin, 13 C. C.(N.S.), 125.

It is claimed by both the plaintiffs in error that the amount of the damages is excessive even after the remittitur made by the trial court, and this court is of the opinion that a $10,000 verdict would be excessive under the circumstances. The boy’s left leg below his knee has been lost, and there is no doubt but that he suffered great pain and anguish, but so far as his ability to earn a livelihood is concerned we think that will not be impaired to the extent claimed by his counsel. Upon a full consideration of this question we are of the opinion that $7,500 would be ample compensation in this case, and that there should be a remittitur of $2,500 from the amount of the judgment entered by the court below. This court is authorized, in the exercise of a sound discretion, to make the acceptance of this remittitur of the excess a condition of refusing to grant a new trial, upon the authority of Pendleton St. Ry. Co. v. Rahmann, 22 O. S., 446.

It is claimed by counsel for the Cincinnati Traction Company that the court erred in charging the doctrine of "last chance” in this case. As we read the charge given by the court at the request of counsel for the Adams Express Company it does not involve the "last chance” doctrine. In order to make a "last chance” case it would have been necessary for the boy only to have been guilty of contributory negligence, and although this plea was set up by the traction company we are not able to find any evidence in the record to support the claim of contributory negligence. It is quite certain that the boy was not placed in a perilous position by reason of his own negligence, but it was by reason of the negligence of the driver of the wagon.

We think that special charges Nos. 4 and 6 complained of were warranted under the rule laid down in Street R. R. Co. v. Brandon, 87 O. S., 187. This was a collision at a street crossing, and there was no “last chance” question raised in the case. Nevertheless, Judge Spear in deciding the case uses the following pertinent language, on page 196:

“But assuming that Brandon was guilty of some negligence in driving on the track, yet if the motorman in the exercise of even ordinary care, after he saw the horses and appreciated Brandon’s peril, had time and opportunity to avoid the possible consequences by cheeking the car, and neglected to so exercise such care, such neglect would be negligence and might properly be regarded as the proximate cause of the injury.”

As we have said, the negligence of the driver can not be imputed to the boy, and therefore if we assume that the driver was guilty of negligence which contributed proximately to the injury of the boy, nevertheless that situation does not present a “last chance” case.

We find no errors in the general charge, nor do we find that the boy was guilty of any contributory negligence.

We are of the opinion that the traction company and the express company were joint tort feasors in this case, and that the ease of Kopp v. B. & O. R. R. Co., 6 C.C.(N.S.), 103, affirmed by the Supreme Court, 70 O. S., 436, and the case of Street Ry. Co. v. Murray, 53 O. S., 570, as well as other cases of a similar kind, support this claim of the defendant in error that the plaintiffs in error were joint tort feasors.

The Adams Express Company claimed that the wagon-boy and the driver were fellow-servants. The court submitted that question to the jury under the evidence, and the jury found that they were not fellow-servants. We think there was evidence sufficient to warrant the jury in reaching this conclusion.

Counsel for the traction company complain of error on the part of the court in allowing the cause to proceed after one of the jurors became ill and complained of not feeling well, although he continued and sat in the case with the other jurors until the case was finally disposed of. He complained of pains in his leg, and counsel for the traction company urges that his mind was so occupied with his own misery and pains that he was unable to give the traction company or the express company a fair trial. The juror did not ask to be excused, and the court did not excuse him. He continued to serve, and, for all that appears in the record, his affliction did not affect the verdict. We see no good reason why a reversal of this case should be predicated on a claim of this kind.

Upon an examination of the entire record we are of the opinion that the defendant in error should submit to a reduction of the judgment in the sum of $2,500, and if it does so, the judgment will be affirmed; otherwise it will be reversed, because in the opinion of the court the verdict and the judgment are excessive.

Jones (Oliver B.), J., concurs.

Jones (E. H.), P. J.,

dissenting:

I can not concur in the opinion that the judgment is excessive, and favor its unconditional affirmance.


author: Robinson, J.

text:
    ILLEGAL PROCEDURE AGAINST A CIVIL SERVICE COMMISSIONER.
    Court of Appeals for Hardin County.
    James E. Lewis v. George H. Lingrel, Mayor of the City of Kenton.
    Decided, February 24, 1916.

      Writ of Prohibition — May be Invoiced by the Injured Party — Procedure for Removal of a Civil Service Commissioner — Mayor Exceeds His Jurisdiction — Charges Generally Stated in the Words of the Statute Insufficient — Investigation by the State Civil Service Commission Not a Prerequisite.

    1. A writ of prohibition may issue, in a proper case, upon the application of a person in his own behalf to prohibit an inferior tribunal from exercising jurisdiction, not possessed by such tribunal, to the injury of such person.
    2. The chief executive of a city has no jurisdiction under Section 486-19, General Code, to try a municipal civil service commissioner on a charge of inefficiency, neglect of duty or malfeasance in office, which charge contains no averments of the facts which constitute such inefficiency, neglect of duty or malfeasance in office. And in such a case prohibition is a proper remedy.
    S. An investigation of the official conduct of a city civil service commissioner by the state civil service commission or the making of a report of such investigation in writing to the chief executive authority of such city, is not a condition precedent to filing or prosecution of charges of official misconduct against such city civil service commissioner before such chief executive.

      Johnson & Johnson and Price & Price, for plaintiff.

      C. M. Cessna, City Solicitor, contra.
   Robinson, J.

On the 22d day of January, 1916, the plaintiff filed his petition in this court, alleging that the defendant, George H. Lingrel, is the duly elected, qualified and acting mayor of the city of Kenton, Ohio; that the plaintiff is an elector of said city; that on the 13th day of March, 1915, by the consideration of Charles R. Price, then mayor of said city of Kenton, he was appointed a member of the municipal civil service commission of said city for the unexpired term of four years ending January 1, 1918; that on said 13th day of March, he qualified and ever since has been acting as such civil service commissioner; that on the 18th day of January, 1916, the defendant herein, through the registered mail of the United States, notified him that he had been charged with “inefficiency in office, neglect of duty in office, and malfeasance in office ” as a member of said civil service commission of the city of Kenton, Ohio, and'that he had been removed from said position and office, said removal to take effect January 26, 1916, unless a hearing was demanded on said charges and on such hearing such charges were not sustained; that on the 20th day of January, 1916, the plaintiff demanded of the defendant a copy of said charges, an opportunity to be publicly heard in person and by counsel in his own defense; that the said George H. Lingrel, mayor as aforesaid, refused to furnish plaintiff with a copy of such charges, and notified the plaintiff that the hearing on said charges would be set for Saturday, January 22, 1916, at 9 o’clock; that on the 22d day of January, 1916, at the mayor’s office in Kenton, Ohio, the plaintiff appeared in person and by counsel and objected to said George H. Lingrel, mayor as aforesaid, proceeding with the hearing on said charges or in any way exercising jurisdiction in said matter; that said objections were 'made in the form of a motion, which motion was overruled by said mayor; that no investigation as to whether the said plaintiff, as a member of said civil service commission, was violating or failing to perform the duties imposed by law, or was wilfully or through any culpable negligence violating the provisions of law or failing to perform his duties as a member of such commission, was ever made by the state civil service commission and no report of any violation or failure to perform his duties as such commissioner was ever made by said state civil service commission to the mayor of the city of Kenton, Ohio, or made a public record by said mayor; that the plaintiff can not defend against said charges unless he be furnished with specifications, stating with substantial certainty the particular act or acts or the omissions thereof which constitute his inefficiency, the particular duty or the omission thereof which constitute his neglect of duty, and the particular acts which constitute his malfeasance in office; that the said George H. Lingrel, mayor, is threatening to and will, unless restrained by the order of this court, proceed without authority of law, to hear and determine said charges; and that the plaintiff is without a remedy at law.

Upon the filing of this petition, a temporary writ prohibiting the defendant from further proceeding in said matter was issued cut of this court.

This cause then came on for hearing upon the motion of the defendant to dissolve the temporary writ of prohibition for the reasons that the facts stated and the allegations contained in plaintiff's petition, and upon which said writ was issued, are insufficient, if proved, to sustain said writ and that said petition does not state facts sufficient to constitute a cause of action against the defendant.

The court has treated this motion as a general demurrer.

The first question which presents itself to the court is, whether this action is properly brought in this court by the plaintiff in his individual capacity, or whether the same should not have been brought in the name of the state.

The right to a writ of prohibition originally belonged to the sovereign, and was issued by the sovereign to restrain inferior courts from assuming jurisdiction which they did not possess. But through the years the right to the writ has been enlarged until it has become a remedy which either the state or any party or person aggrieved may invoke in a proper ease. And while the usual way of invoking the writ has been by the state on relation of the complaining party, there is now, in this country at least, abundant authority for the injured party to invoke the writ in his own behalf. Trainer v. Porter, 45 Mo., 336; 32 Cyc., 625.

The next proposition which presents itself for the determination of the court is, whether the defendant in this case was so far exceeding his jurisdiction in proceeding to hear and determine the alleged charges against the plaintiff as require this court to interfere by this extraordinary remedy.

The chief executive of a city has only such jurisdiction to try and remove a civil service commissioner as the statute gives him, and his office is essentially ministerial rather than judicial.

Section 486-19 of the General Code provides—

“That the chief executive authority of such city may at any time remove any municipal civil service commissioner for inefficiency, neglect of duty, or malfeasance in office, having first given to such commissioner a copy of the charges against him and an opportunity to be publicly heard in person or by counsel in his own defense, and any such act of removal shall be final. ’ ’

This provision gives to the chief executive of a city jurisdiction which in its naturé is judicial in the matter of removing a city civil service commissioner, and provides that such commissioner, before his removal, shall be furnished with a copy of the charges against him and shall have an opportunity to be heard in person and by counsel.

The charges filed against the plaintiff herein before said chief executive were in the following words:

‘ ‘Mr. J. E. Lewis. You are hereby charged with the following, as a member of the Civil Service Commission of the city of Kenton, Ohio, to-wit:

“T. Inefficiency in office.
“2. Neglect of duty in said office.
“3. Malfeasance in office.
“Any one of said charges, if true, is a cause for removing you from said office.
‘‘You are therefore notified that you are removed from said position and office as a member of the Civil Service Commission of the city of Kenton, Ohio, to take effect on January 26, 1916, unless a hearing is demanded on said charges before said time and upon said hearing said charges are not sustained.
“If you desire a hearing on said charges you will notify me at once.
“Witness my hand and official seal at Kenton, Ohio, this 18th day of January, A. D. 1916. George H. Lingrel, mayor of the city of Kenton, Ohio. Seal.”

The charges are in the words of the statute only and embody no facts apprising the accused of what facts constitute his inefflciency, what things he has neglected to do which he should have done, or what things he has done which he should not have done. And said charges are made by the said George H. Lingrel as mayor of said city.

In the case of State, ex rel Meader et al, v. Sullivan, 58 Ohio State, 504, the Supreme Court had occasion to pass upon a similar statute pertaining to the members of the board of equalization, and involving a similar power conferred by said statute upon the mayors of cities. And in so doing it declared that the power so conferred upon a mayor “is a special authority, and must be strictly pursued. Such power can not be exercised arbitrarily, but only upon complaint, and after a hearing had in which an officer is afforded opportunity to refute the charge made against him. Nor has the mayor in such case authority to proceed to a hearing until charges have been preferred which embody facts that, in judgment of law, constitute neglect of duty or misconduct in office, and of which the accused has had due notice.”

And again, in the case of State, ex rel Attorney-General, v. Hoaglan et al, 64 Ohio State, 532, said court holds:

“When a public officer may be removed for specified causes, such facts must be stated as in judgment of law constitute the cause relied on.”

The charges filed against this plaintiff do not contain any facts by which the plaintiff might be apprised of the accusations which he would be required to meet, nor any facts which in judgment of law constitute inefficiency in office, neglect of duty in office or malfeasance in office.

We are therefore of the opinion that there were no charges filed against the plaintiff which gave to said George H. Lingrel, mayor, jurisdiction to proceed to the hearing and determination of the question attempted to be raised by the so-called charges filed; and since neither appeal nor error from such judgment of the mayor can be prosecuted, a writ of prohibition is plaintiff’s only remedy.

The time elapsing between the 18th day of January, 1916, and the 26th day of January, 1916, the day set for said hearing, we think was sufficient notice had the charge contained sufficient facts to place the plaintiff upon trial.

We are of opinion that an investigation by the state civil service commission, and the filing of the report of such commission, is not a condition precedent to the filing of charges against a city civil service commissioner. We, however, are of opin-. ion that no public officer, whether his duties be ministerial or 'judicial, ought to place himself in the position.of being both the accuser and the judge of the accused. The accused is entitled to a fair and impartial trial and to a judgment by an unbiased tribunal, and that next to the duty of the officer, acting in a judicial capacity, to render a righteous judgment is that of doing it in such a manner as will beget no suspicion of unfairness or partiality. The propriety of an incumbent of any tribunal making the charges which his duties require him to hear and pass upon is, to say the least, questionable.

The writ of prohibition is therefore made perpetual, prohibiting said George H. Lingrel, as mayor of the city of Kenton, Ohio, from proceeding to try the said James E. Lewis upon the charges as now filed before said mayor.

Crow, J., and Kinder, J., concur.


author: Jones (E. H.), J.

text:
    ATTACHING THE VENDOR’S STATEMENT TO A CONDITIONAL SALE CONTRACT.
    Court of Appeals for Butler County.
    Charles Oglesbey v. The National Box Board Company.
    Decided, 1913.

      Conditional Sales — Method of Placing Vendor’s Statement “Thereon”— Section 8568 Construed.

    It is a sufficient compliance with Section 8568, General Code, relating to conditional sales of property, if the statement required by said section to be placed “thereon” under oath, made by the vendor or his agent, is written upon a separate piece of paper and attached by means of fasteners to the conditional sale contract. National Cash Register Co. v. Closs, Assignee, 12 C.C.(N.S.), 15, overruled.

      Stanley Shaffer, B. F. Harwitz and W. C. Shepherd, for plaintiff in error.
   Jones (E. H.), J.

The question decided by the court below, from whose judgment this error proceeding is prosecuted, arose upon an intervening petition filed by plaintiff in error, the Hooven, Owens & Rentschler Company, claiming title to an engine which it had previously sold to the National Box Board Company, which company later went into the hands of a receiver. This controversy is between the mortgagees and general creditors and the vendor of the engine, plaintiff in error here, and presents the question whether or not the engine shall be considered as general assets of the concern, and whether or not it will be sold and the proceeds applied generally towards the payment of debts, or whether it remains the property of Hooven, Owens & Rentschler Company under the terms of conditional sale, which was evidenced by a paper writing in the ordinary form as provided by Section 8568, General Code, and duly filed by them in the recorder’s office. This conditional sale is attacked by the general creditors as not binding by reason of the fact that tbe statement required by Section 8568 to be “thereon” under oath made by the vendor or his agent, is not in compliance with the statute in that it is not written upon the same piece of paper as the c-opy of the contract, but upon a separate piece of paper and attached b/ means of brass fasteners to said copy of the conditional sale contract, which itself consisted of several pieces of paper attached together by similar fasteners.

Defendant in error, in support of its contention, relies upon the case of National Cash Register Company v. Closs, Assignee, 12 C.C.(N.S.), 15. It appears that case supports the contention here made by the defendant in error, as well as the judgment of the lower court; but on careful consideration of the question here presented we feel that we are not bound by that decision and therefore must decline to follow it. The decision in that case-seems to have been based upon the conviction that the word “thereon” had the same force and effect as had the language in regard to the acknowledgment of a deed in Section 8510, General Code, which expressly provides that the certificate must be on the same sheet on which the instrument is written or printed and which was construed in Winkler v. Higgins, 9 O. S., 599, to require strict compliance in order to make a valid deed. But the case of Norman v. Shepherd, 38 O. S., 320, held good a mortgage which was written on several sheets with a material part the testatum clause, upon the same sheet as the certificate of acknowledgment

We are of the opinion that the requirements of Section 8568 have been sufficiently complied with in the preparation and filing of the contract of conditional sale, and that it reserved to the Hooven, Owens & Rentschler Company title in said engine against the claims of all creditors of the National Box Board Company, including the prior mortgagees.

Upon the other question involved in this case, viz., as to whether or not this engine became a fixture, we are clearly of the opinion that it did not; that it remained personalty in accordance with the terms of the contract Avhich evidenced the intention of the parties and was notice to all persons.

It follows that the judgment of the lower' court should be reversed and judgment entered for the vendor, plaintiff in error.

Swing, J., and Jones (O. B.), J., concur.


author: Per Curiam.

text:
    TITLE TO GOODS DELIVERED SUBJECT TO APPROVAL.
    Court of Appeals for Hamilton County.
    In re Charlotte T. Brown et al.
    Decided, January 31, 1916.

      Title — Remains in the Seller — Where Goods Delivered Subject to Approval — Are Retained for a Time Without Notice of Rejection.

    Where goods are placed in the house of a possible purchaser, without being selected by him or the selling price being made Known to him, the fact that he permitted the goods to remain in the house without notice of rejection for eight days after a bill for them had been submitted does not render the sale complete and title remains in the seller.

      Samuel Wo-lfstein and Dempsey & Niel) ending, for ~W. H. Davis.

      Worthington, Strong & Stettinius, for Loring Andrews.

      Thomas Bentham, for trustee.
   Per Curiam.

After a consideration of the facts in this case and applying thereto the law of Ohio with regard to sales we reach the conclusion that on May 9, 1913, the title to the personal property in question was in the Loring Andrews Company and did not pass to the assignee.

Section 8399, General Code, provides:

“Rules for ascertaining the intention of the parties as to the time at which the property in the goods is to pass to the buyer” and by the language of the section said rules do not apply where a different intention appears.

The goods were sent to Mrs. Brown’s house on approval, and hence the second subdivision of rule 3 of Section 8399 would apply here. It provides:

“(2) When goods are delivered to the buyer on approval or on trial or on satisfaction, or other similar terms, the property therein passes to the buyer—
“(a) When he signifies his approval or acceptance to the seller, or does any other act adopting the transaction.
“ (b) If he does not signify his approval or acceptance to the seller, but retains the goods without giving notice of rejection, then, if a time has been fixed for the return of the goods, on the expiration of such time, and if no time has been fixed, on the expiration of a reasonable time. What is a reasonable time is a question of fact.”

Mrs. Brown had not signified her approval or acceptance of the goods, but she had retained them without notice of rejection. As no time was fixed for the return of the goods, the sale would be complete on expiration of a reasonable time, and what is a reasonable time is the question of fact in this case.

The time may vary owing to the circumstances of each case. Here no price was given Mrs. Brown on the goods. Most of the articles had not been selected by her, but were placed in her home during her absence. She had no intimation of the price or that the goods were charged to her as sold until eight days before the assignment. At that time and for months before, she was ill, insolvent and much worried over business affairs of a different nature, of greater magnitude and “nearer consequence. ’ ’ The fact that she let eight days elapse after receipt of this bill when she was obviously contemplating bankruptcy is not conclusive evidence that she accepted the goods. She could have returned the bill received by her with notice of rejection and would not have been indebted to the firm for same.

Such being the case the assignee or trustee has no claim upon the goods and the Loring Andrews Company are entitled to the proceeds of the sale of the property, to-wit, $1,200.


text:
    ASSESSMENT FOR LOSSES SUSTAINED BY A MUTUAL INSURANCE ASSOCIATION.
    Circuit Court of Medina County.
    The Farmers’ Mutual Fire & Lighting Insurance Association of Medina County v. L. J. Crow.
    Decided, November, 1903.

      Mutual Insurance Associations — What May he Included in Assessments.

    Where the by-laws of a mutual fire insurance association organized under Sections 3686-3690, Revised Statutes, provide that an assessment shall be levied at a certain date each year to pay the losses incurred and incidental expenses, the inclusion in the amount for which assessments are levied of an amount sufficient to reimburse officers of the company for money which they had advanced to pay losses as they occurred, does not make the assessments illegal.
    Marvin, J.j Caldwell, J., and Hale, J., concur.
    Error to the court of common pleas.
   The parties to the original action were the reverse of the parties as they appear in this proceeding in error. In this opinion the term plaintiff will'be used to designate L. J. Crow, and the term defendant to designate the insurance company.

The defendant is a corporation organized under the Revised Statutes of Ohio, Sections 3686 to 3690 inclusive, the purpose of the organization being the mutual insurance of the property of its members against loss by fire and lightning.

On the 17th day of April, 1897, the plaintiff procured from the defendant a policy of insurance in the amount of $1,725, upon a dwelling-house owned by him, together with its contents, and other buildings upon his home premises. This policy by its terms was effective from the 23d day of May, 1897, at noqn, to the 23d day of May, 1902, at noon.

On the 20th day of March, 1901, said dwelling-house and most, if not all, of the other property covered by said policy of insurance was destroyed by fire. Proper notice of such fire and proofs of loss were made to the defendant, but the defendant refused to pay for such loss under said policy because it claimed that the plaintiff had forfeited his right to the protection afforded by said policy.

At the time said policy was issued the plaintiff paid to the defendant a small sum of money.

By the terms and conditions of the policy it was provided "that assessments should be made from time to time upon policy-holders, who, by virtue of taking such policies, became members of the association for the payment of the expenses of maintaining the association, and to pay losses which should be sustained by members. This provision as to assessment is found in the constitution of the association which is made a part of the policy, and is in these words:

“Those entering therein shall agree to be assessed specifically for incidental purposes and for the payment of losses and damages which may occur to any member of said association by fire or lightning.”

The by-laws of the association also made a part of the policy, make provision as to these assessments in these words:

’ “Each member shall pay his or her assessment within 30 days after date of notice from the secretary, and in default thereof, ten cents per mile shall be added to the amount of his or her assessment, which the secretary shall receive for collecting the same. Should any member fail to pay his or her assessment for more than 60 days, he or she shall forfeit the protection of this association until all dues are paid in, and the secretary shall proceed to collect the same by law in the name of the association.”

Another provision of the by-laws incorporated in the policy is that, upon proper proofs and ascertainment of loss by a member of the association, “the board of directors shall have authority to provide the necessary means for the payment of such loss by borrowing money, or otherwise, within the time specified in the by-laws whenever the same is ascertained and adjusted.”

On the part of the defendant it is urged that on or about the 2d day of July, 1900, the defendant duly assessed against the plaintiff the sum of $5 to be paid by him on or before the 25th day of September, 1900; that said sum was the proper proportionate share which should have been paid by said defendant for the losses and incidental expenses of the association at the time such assessment was made; that the plaintiff was duly notified of such assessment, but wholly failed and negelcted to pay the same within the time limited, or within sixty days after he was duly notified of such assessment, and that he never was reinstated as a member of the association.

Upon the trial it developed that an agreement was made, or undertaken to be made, by the association against the plaintiff at the date and for the amount claimed by the defendant, and evidence was given tending to show that the plaintiff was duly notified of such assessment. It is not claimed that he ever paid it. The plaintiff says, however, that such assessment was nor duly and legally made.

It is provided in the by-laws of the association that unless otherwise deemed necessary by 'the officers of the association the board of directors shall, on the last Thursday in August of each year, meet for the purpose of ordering an assessment to meet the losses and expenses of the association for the past year.

It will be observed that the assessment for the payment of which the plaintiff is claimed to be in default was made on the 2d day of July, and not on the last Thursday in August, but since by the provision of the by-laws such assessment may be made at other times than said last Thursday in August, when deemed necessary by the board of directors, the date of the assessment is not important.

A serious question in the case is whether the assessment was made for the purposes provided by the laws governing the association.

On the part of the plaintiff it was urged that other things were included in the assessment than those for which assess ments were authorized to be made — that is, for something in addition to the amount necessary for the payment of the inci dental expenses and losses sustained by members.

It appears that, in some instances at least, when losses were sustained, money for the payment of such losses was furnished by individual members of the board of directors, and that included in the assessment made on the 2d day of July, 1900, was an amount for the repajcment of the money so furnished, together with interest thereon, without there having been a formal. borrowing of said money by said association; that is, without any meeting of the board of directors at which said borrowing was in terms authorized; and on the part of the plaintiff it is urged that if any part of the amount included in the assessment for non-payment of which the forfeiture on the part of the plaintiff is claimed, was to repay this money so advanced, the assessment was unlawful, and the failure to pay by the plaintiff ■did not forfeit his rights under the policy.

The court charged the jury, among other things:

“If jrou find from the evidence that any part or portion dr fraction of said $5 thus assessed against said plaintiff by defendant was assessed to be used by defendant to pay off any person or persons who had advanced any money to pay said losses or expense of said company mentioned and not wholly for the purpose to pay to said persons who had suffered said losses the amount due and owing to them and the expenses 'of said association after plaintiff became a member, or for money borrowed to pay said losses and expenses by defendant, through its board acting as a board, then said failure of plaintiff to pay said assessment would not defeat his right to recover in this action.”

And again:

“If any portion of said $5, however small, was assessed against the plaintiff to pay persons for money gratuitously advanced b3r them without any authorization by defendant through its board of directors acting as such, then 3?our verdict should be for the plaintiff.

• Other portions of the charge are to the same effect, the instructions being clearly that the assessment could only be made to pay the incidental expenses of the association, for losses sustained by members of the association and for money borrowed by the association to pay such losses when such borrowing had been done under authorization especially granted by the board of directors at a meeting of such board.

Various requests were made by the defendant for instructions to be given to the jury, all of which, except the one marked “Request No. 4,” were given. The jury retired after these instructions were given, and later returned into court, reporting that they were unable to agree upon a verdict, whereupon the court ordered the said jury to retire to its jury-room and return a verdict for the plaintiff, as prayed for in his petition. The jury thereupon retired to its room, and upon coming again into court, returned a verdict for the plaintiff.

Motion for a new trial was made by. the defendant, which was overruled, and judgment was entered upon the verdict.

Numerous errors are claimed on the part of the defendant, one of which is that the court erred in refusing to grant “Request No. 4,” which was, in part, that if a part of the assessment made on the 2d day of July, 1900, was one which might lawfully be made and the balance one which might not lawfully be made, that the plaintiff forfeited his membership by not paying so much of said assessment as was lawfully made. There was no error in refusing this request'. The duty was upon the insurance company to fix the right amount to be assessed and to notify the plaintiff of the amount which was legally due from him and if the amount so claimed from him was not the lawful amount it did not devolve upon him to ascertain and tender to the association the amount which it might lawfully have claimed.

There was, however, error in the charge of the court that no assessment could lawfully be made which should include an amount for the repayment of moneys furnished for the payment of losses. If money was furnished by the officers of this association which was properly used by such association in the payment of losses sustained by its members, and such use of the money was ratified by the association by levying an assessment to repay, it was proper to treat such money as a loan to the association. No possible harm could come to the association or any of its members by using money obtained by this means rather than by using money after a formal loan had been made. It would be a most inequitable and unjust rule to hold that the members of this association might have the benefits of having its losses paid by one of its officers, or some other person, and then say that the members of the association could not be assessed to pay the money so furnished.

It follows from what has been said that the court erred in instructing the jury to return a verdict for the plaintiff, and for these errors the judgment is reversed and the case remanded to the court of common pleas for further proceedings.


text:
    COLLECTION FOR GOODS IN EXCESS OF THOSE SHIPPED.
    Circuit Court of Cuyahoga County.
    Benjamin Emmerman et al v. The Ohio Iron & Metal Company.
    Decided, December 8, 1902.

      Attachment — When Debt Fraudulently Contracted.

    An action to recover money paid .to the defendant by reason of the defendant having billed and collected for goods in excess of the amount of goods actually shipped to plaintiff, is an action to collect a debt fraudulently or criminally contracted within the meaning of Section 5521, Revised Statutes, and is ground for attachment.
    Marvin, J.; Caldwell, J., and Hale, J., concur.
    Error to the court of common pleas.
   The Ohio Iron & Metal Company, which is a corporation, brought suit in the court of common pleas against Benjamin Emmerman and others, his partners in business, which suit is still pending in that court. As the time of filing the petition an affidavit was filed by the plaintiff for an attachment against the defendant. Later an alias affidavit for attachment was filed and an attachment was allowed. The defendant below moved for a dissolution of such attachment. This motion was overruled, and it is to reverse the judgment overruling such motion that this proceeding is prosecuted. The evidence introduced in the court of common pleas upon this motion was not brought before us by bill of exceptions and can not, therefore, be considered, hut one of the grounds of the motion is that the affidavit upon which the attachment was allowed is insufficient. That affidavit, omitting the formal parts, reads:

‘ ‘ That the claim on which this suit is brought is damages sustained by plaintiff by reason of the fraudulent sale by defendant to plaintiff of a quantity of steel scrap, in billing and collecting from plaintiff for 93,600 pounds and fraudulently shipping only 36,060 pounds of said scrap.”

The affidavit in all particulars except as above quoted, is conceded to be sufficient and the question is, is there such a statement in so much of the affidavit as is quoted to bring it within the statute.

The proceeding for attachment is based upon Section 5521, Revised Code, and the language of the section is:

‘ ‘ That in a civil action for the recovery of money the plaintiff may, at or after the commencement thereof, have an attachment against the property of the defendant upon the grounds herein stated. 1. When the defendant or one of several defendants

« * *

“9. Has fraudulently or criminally contracted the debt, or incurred the obligation for which suit is about to be ór has been brought.” * # *

The whole question is, whether the language above quoted from the affidavit in this case shows that the debt for which the suit was brought was fraudulently contracted. We hold that it clearly does so show. The statement is that the defendants below, by fraud in the sale of certain goods obtained from the plaintiff below pay for more than 50,000 pounds of such goods which they never furnished. If the allegations of this affidavit are true, clearly the debt for which the suit is brought, to-wit: the recovery of the money paid for goods never furnished, was fraudently contracted by the defendant below.

It follows that the judgment of the court of common pleas in overruling the motion to discharge the attachment is affirmed.


text:
    CHATTEL MORTGAGES WITHHELD FROM RECORD.
    Circuit Court of Cuyaboga County.
    The Gibson & Price Company v. The Rouse & Hills Company et al.
    Decided, January 26, 1903.

      Fraud — When Withholding Chattel Mortgages front Record Not a Fraud Upon Creditors.

    Where chattel mortgages, covering all the property and all the accounts and bills receivable of the mortgagor, are taken as temporary security and are withheld from record, not as the result of any agreement nor with fraudulent intent, nor for the purpose of securing credit for the mortgagor from other parties, but to prevent creditors already existing from all pressing demands for payment at once, such mortgage is not a fraud upon present prospective creditors.

      White, Johnson, McCaslin & Gannon, for plaintiff.

      B-landin, Bice & Ginn and Gline, Carr, Tolies & Goff, contra.
    Caldwell, J.; Hale, J., and Marvin, J., concur.
    This case is in this court on appeal from the Common Pleas Court of Cuyahoga County. The facts in the case need not be stated in full, except so far as may be required in the consideration of the questions of law involved in the case.
   The defendant, the Rouse & Hills Company, was in business in the city of Cleveland, and B. L. Rouse was the president of the company and representing the company in most of the transactions involved in this action.

B. L. Rouse, while the active man in the Rouse & Hills Company during the course of the events narrated in the evidence in this case, also had a business of his own, which he conducted as B. L. Rouse & Company. His business was largely the manufacturing of goods in the same line as the goods that the Rouse & Hills Company handled and his goods were sold directly to the Rouse & Hills Company. The Rouse & Hills Company were debtors to the bank and were also debtors to H. C. Rouse. B. L. Rouse, in his individual business, owed $3,000 in debts. The Rouse & Hills Company was also indebted to B. L. Rouse in quite a considerable sum of money, but, as he was connected with both companies, this indebtedness to him seems to have been treated in this case, upon his authority, as not a liability of the company.

The B. L. Rouse Company, through its president, B. L. Rouse, applied to the bank for a further credit, and the bank, upon making an inquiry as to the financial condition of the company, was told by B. L. Rouse that it was indebted to H. C. Rouse upon two notes: one for $5,000 and the other for $12,000, and that it had given to him demand cognovit notes for the same. Thereupon the bank refused any further credit to the corporation unless the H. C. Rouse cognovit notes should be gotten out of the way, and the bank referred the matter to its attorney, Mr. Goff, to determine what could be done in that line. Mr. Goff found that H. C. Rouse was out of the city, in Europe or Africa, and that the firm of Hoyt, Dustin & Kelley were his lawyers, and Mr. Goff thereupon applied to Mr. Dustin in regard to the matter and, after considerable discussion, it was agreed between them that the cognovit notes of H. C. Rouse should be merged, but not surrendered, and that he should have a collateral note for the amount of the same, and that the bank, for the amount that the company then owed it and for an additional credit of some $15,000, was to have a note, and these notes were to be secured by chattel mortgages; one to H. C. Rouse for the amount due him, and the other to the bank for the amount that the company then ow'ed it and the additional credit to be given it.

This was not done without several conferences -with B. L. Rouse, the president of the company, and Mr. Smith, who was secretary of the company, and these creditors required statements of the financial condition of the Rouse & Hills Company to be made to them and the officers of the company were examined and questioned carefully as to all the assets shown by the statements and to its mode of doing business and as to whether it was making or losing money in carrying on its business. After a full and exhaustive examination along these lines, Mr. Hoyt and Mir. Dustin became satisfied that the company was solvent and was in a fair way of making money, and that Mr. B. L. Rouse assured them that when IT. C. Rouse returned he would furnish all the money necessary to the Rouse & Hills Company to enable it to pay off the bank, and relieve it entirely from any debts that might be pressing; but the Rouse & Hills Company was just at that time in need of some $15,000 to take up liabilities that it then owed and which it desired very much to take care of at that time, and Mr. Dustin, being satisfied of the financial soundness of the company and believing what Mr. B. L. Rouse said as to the aid that IT. 0. Rouse would give it upon his return, he (Dustin) took the responsibility of not entering up judgments on these notes and taking a new collateral note to the cognovit notes held by H. C. Rouse, and which were in his possession, and took the chattel mortgage until such time as IT. 0. Rouse should return to the city of Cleveland.

The securities then taken by way of chattel mortgages and assignments, covered the bills receivable, the accounts and the goods of the Rouse & Hills Company, and also covered all acquisitions that might thereafter come into these lines of credit.

Thus far, it is insisted, that the evidence shows that when-these chattel mortgages were given covering substantially all the property of the Rouse & Hills Company within its possession or that might thereafter come into its possession in the carrying on of its business, the Rouse & Hills Company was insolvent, and that the bank, as represented by the officers of the •hank and its attorney and the attorney of H. C. Rouse, knew that the company was insolvent anl unable to pay its debts. The evidence shows that the Rouse & Hills Company was at that time carrying on its business in the usual way and was meeting its financial responsibility with ordinary promptness, and that it was insolvent was not made out to the plaintiff in this case except as the expert bookkeeper sees fit, as a matter of bookkeeping, to throw out certain assets and liabilities to the company and reduce the assets of the company by diminishing values. We conclude that the company was not at that time insolvent, and that the attorneys who represented the creditors obtaining the chattel mortgages and assignments had no knowledge of the insolvency of the company nor did they have such evidence before them as would warrant a careful man in believing that the company was insolvent; and that these chattel mortgages were not taken with any intent to hinder, delay or defraud creditors.

These chattel mortgages were supposed to be temporary securities. Relying upon the confidence of B. L. Rouse that H. C. Rouse would aid the company upon his return to the city, it was supposed by all parties that he would do so upon his return and that then matters would be straightened up and everything put into a more permanent form. These chattel mortgages were not filed of record as required by the state of Ohio, Section 4150 of the Revised Statutes, but were held, one by A. C. Dustin, and the other by Mr. Goff — the two creditors to whom they had been given. While these mortgages were thus withheld from the record, the Rouse & Hills Company went on with its business in the ordinary way, buying goods as theretofore and carrying on its business in the usual manner. The money obtained from the bank was used in paying liabilities of the company, and, for aught that appears in this ease, the mortgagees knew nothing of how business was carried on by the company, until some little time after the mortgages were taken, when they required that monthly statements of all the business being done by the company should be made to them; these were made, and trial balances also furnished. There was nothing in any of these statements that would indicate to the creditors that the company was not getting along well with its business. After these mortgages had been held for several months without being left for record, Mr. Hills of the company came to the city, he having been out of the city during these transactions, connected with business in the east, and was in consultation with attorneys in the city, and the attorneys representing the chattel mortgages became aware of his presence and, owing to some difficulty between him and Mr. B. L. Rouse of which they had learned, they became suspicious that he intended to do something that might, in some way, be injurious to their securities and, thereupon, by an understanding between them, they took possession of the property secured by their mortgages. Thereafter the Rouse & Hills Company made an assignment to Mr. Ginn and he is in this case representing the creditors generally, while other creditors are being represented by attorneys who make a claim somewhat different from that of the trustee.

It is claimed by the trustee, that these chattel mortgages are void as to all the creditors, while some of the creditors are here claiming that the chattel mortgages are void only as to those credits given before the time of the giving of the chattel mortgages and the time of taking possession under the same.

These facts raise a number of questions in the case:

1st. Are these mortgages invalid as to creditors because the corporation was insolvent when they were given ?

As before stated, we think the company was not insolvent when the mortgages were given, and we have also said that they were not given to hinder, delay and defraud creditors; and the bank and II. C. Rouse, notwithstanding their mortgages covered all goods purchased by the company and all accounts due to it after the giving of the mortgages, took assignments of accounts as late as on the 29th of the month and not long prior to the time of taking possession under these mortgages; and it may be contended that these mortgages are, therefore, void because of the proximity of the time when the company went into the hands of the trustee. The last claim is that the mortgages are not valid because withheld from record.

This last question is the only one that remains for consideration in this ease; and it is determined, first, by the evidence, and second, by a consideration of the law.

The claim made is, that these mortgages were withheld either by agreement between the mortgagor and the mortgagees, to enable the mortgagor to obtain credit in his business, or, if not by such an agreement or understanding to that effect, yet that, under all the circumstances and facts surrounding the transaction, they had the effect to so mislead persons to give credit to the company in the interim of the withholding, that an estoppel will arise in favor of the creditors who, in this interim, extended credit, and will make the mortgage void as to them.

The most favorable evidence in the case is, that there seems to have been an understanding between the attorneys representing the mortgagees, that neither would do anything under his mortgage without giving the other notice. There was no agreement between the mortgagor and the mortgagees as to the withholding of the mortgage from record. The testimony of Mr. Goff bears upon this question somewhat. This question was asked him.

“He said to you that with the help of the money which was advanced, and the payments which he could make and the indulgences and extensions which he could get from merchandise creditors, he would pull through, did he?” Answer. “Who said that?”
Question. “B. L. Rouse. ’ ’ Answer. ‘ ‘No, I don’t think he put it in that way; he said that he would have no difficulty with Mr. Henry Rouse, who held $17,000 of the notes of the Rouse & Hills Company; that with the $15,000 of additional money that he was to borrow at the bank, he would pay off something like $15,000 or $18,000 of bills payable, at maturity; that his sales would enable him to take care of his accounts payable as they matured, with such extensions as he could get by the giving of notes. ’ ’
Question. “You testified before: ‘I recall the $18,000 item and that he wanted about $15,000 to take care of these items, stating that if that were provided, he would have no difficulty out of his sales to take care of the accounts payable, with such indulgence as he could get in that way?’ ” Answer. “That is what I now say. ’ ’
Question: “Then the .fact that he would still require extensions from merchandise creditors was talked of at, that time when this loan was under consideration?” Answer. “I don’t think that question of asking for indulgence or extensions in that way rvas discussed; it wms the right that he had as a dealer, as a purchaser from the jobber or manufacturer, or whatever it was, to his cash discount if he saw' fit to pay cash, or the giving of a four months paper, perhaps if he did not care to pay cash; it was simply a right that he had. ’ ’
Question “Did you use the expression ‘such indulgence as he could get?’ ” Answer. “Well, such indulgence as was given him or he had a right to by giving paper.”
Question. “Indulgence is not a right, is it?” Answer. “Possibly not, strictly speaking.”
Question. “Did you learn from him then that he was asking extensions of merchandise debts that had become due?” Answer. “No, sir, I did not.”
Question. “And that he has been for some time trying to obtain extensions?” Answer. “No, sir, I did not.”
Question. “Did you make any inquiry on that subject?” Auswer. “I think not.”
Question. “You contemplated that he should continue in business as he had before?” Answer. “No, sir, not as he had before; I assumed that he would continue business and that there would be no necessity for any considerable purchase of merchandise until Mr. Rouse’s return.”
Question. “ I do not know what considerable means; you contemplated that he would make purchases?” Answer. “To a very limited extent, I think.”
Question. “You took no action to limit purchases, did you?” Answer. “Yes, I think Mr. Wilson was quite particular to emphasize that matter.”

This evidence to our mind shows that until Mr. Rouse returned, it was supposed by the mortgagees th'at the Rouse & Hills Company were carrying on business, but that, owing to the state of its stock on hand, it would have no occasion until Mr. II. C. Rouse’s return, to obtain credit to any considerable extent. Mr. Rouse did not return as soon as he was expected and the period of holding these chattel mortgages was for that reason extended beyond what was contemplated when they were given and this led to more extensive purchases by the company than was contemplated by the mortgagees when they received their security. Then bearing upon the question of filing these mortgages, this question was asked of Mr. Goff:

“Now, Mr. Goff, did you not in your experience of such matters, know that if you and he filed this mortgage covering all property then or thereafter existing, of the Rouse & Hills Company, or made its existence known, and the existence of the assignment of the accounts, that that would end the transaction of business by that company in its capacity to get credit?” Answer. ‘ ‘ I think I knew if the mortgage was filed, that that would bring about a closing-down of the business. I think that would necessarily follow.”
Question. “And all the accounts, present and future, had .been assigned, and yet you say that nothing was said there by you or Mr. Dustin or Mr. Wilson or Mr. B. L. Rouse or Mr. Smith on the subject of the effect of making known this mortgage, do you?” Answer. “I recall nothing that was said; it was certainly understood between us, that until Mr. Rouse returned, which was expected in the latter part of March, that in order to accomplish what was desired so as to keep that 'a going concern until Mr. Rouse’s return to the city, that there should not be publicity given.”

This is the only testimony that I find in the case, that hints very closefy upon any arrangement between the mortgagor and the mortgagees to withhold these mortgages from record, and it is the only thing from which the purpose and intent of the withholding of the mortgages might be inferred to extend to the credit of the company. He distinctly states that he remembers nothing that was said on the question of withholding but he says that it was understood by Rouse and Smith representing the mortgagees that, in order to accomplish what was desired, they would give no publicity until the return of Mr. IT. C. Rouse.

To our minds the evidence shows in addition to what I have already said: That this arrangement of giving the mortgages on account of the confidence that B. L. Rouse had that H. C. Rouse would give the company all the financial aid it needed upon his return, that these mortgages were given, as, in a measure tentative in their character, to hold the matters of the company in its then condition or as they would be after using the money got by the loan until the return of Mr. IT. C. Rouse. There was no purpose in withholding the mortgages to injure any creditors that might in the interim sell goods to the company, or renew obligations: nor was there any agreement to withhold the mortgages from record. The only purpose in withholding them was, not to extend the credit of the company, but to prevent creditors, already existing, from so pressing the company that it would be obliged to meet its obligations, not in the ordinary course of business', but by all bringing pressure at once upon it, and this is what we understand this testimony to mean.

And we find from the facts, that the mortgages were not withheld from record with any fraudulent intent or purpose, nor was it supposed or believed by the mortgagees that withholding from record would be the means of extending the credit of the company, for their belief was that until Mr. Rouse returned, there would be no occasion for the company to make any purchases to any considerable extent.

Much of the law that has been cited upon this question is where there has been a fraudulent intent in withholding the mortgage from record or withholding where it was known by the mortgagee that others would give extensive credit and would be misled by such withholding — which the courts have construed to be a fraudulent withholding. In this case we think that that law is not applicable to the facts as found by us.

In this state it is, we believe, the law that even under such state of facts, the creditors who have extended credit in the interim between the taking and filing of the mortgage can not be preferred to the mortgagee unless they have, in some way, seized the property or obtained a lien upon it, but we do not see that this question is involved under the facts in -this case.

It is contended by counsel for plaintiff that the withholding from record, although not with the intent at the time the mortgage is given of extending the credit of the mortgagor, yet, if while the mortgage is being withheld, the mortgagee becomes aware of the fact that the mortgagor is having extended to him credit and he still does not file his mortgage, that will work an estoppel upon him on the ground that he has not acted when he was called upon to act and hence can not assert his rights as against one who has been misled by his not acting.

A consideration of the eases in this state, is found in 112 Fed. Rep., 301, Jn Re Shirley. In that case, Judge Day has reviewed carefully many of the decisions of the state of Ohio, and we think his conclusions are well founded, and it will not be necessary for us here to consider them any further than they are considered in that case. Judge Day says that there can be no estoppel in the absence of fraud and in the case he was then considering, he had found that there was no actual fraud, although the mortgage had been withheld by reason of an agreement between the mortgagor and the mortgagee that it should be withheld from the record. And Judge Day says this proposition is true: That there can be no estoppel in the absence of fraud if the mortgagee simply held his security void until filed, as against creditors who were at full liberty to assert their rights against the property. The mortgagor had an undoubted right to prefer creditors by giving to one a security denied to others. When the chattel mortgage is filed, it becomes such preference only from the date of filing; until filed, it is void as to creditors. While this term is used without limitation in the statute, as construed by the Ohio Supreme Court it means such creditors as have fastened upon the property before the filing of the mortgage. All other creditors must assail the security for fraud in order to defeat the preferences. And he says that the cases holding a contrary doctrine are from states with different statutes, or ivhere the Supreme Court has given a different construction to a similar statute.

It is contended by counsel for plaintiff that, outside.of the statute and the construction giveu to it by the Supreme Court, the doctrine of estoppel obtains in these cases; that the decisions of Ohio on the construction of the statute are not adverse to holding that a mortgage Avithheld from record as this was, will estop the party from asserting it as against those aaTlo became creditors of the mortgagor while the mortgage Avas thus withheld. Many cases are cited to us in which it is claimed that this doctrine is held.

We are cited to Dobson v. Snyder, 70 Fed. Rep., 10. In that ease the court found a design and intent on the part of the bank for AArhose benefit the mortgage Avas given and the mortgagor to shield and benefit the latter at the expense of some one else. That case is not applicable to the facts we find in this.

In California, as found in Ruggles v. Cannedy, 53 Pac. Rep., 911, the court construes the statute pertaining to mortgages in connection with the statute in regard to sales and places the matter of record of mortgage on the same ground and makes it a substitute for the delivery of the goods in a sale, and construes their statute to mean that unless the mortgage is recorded, it is absolutely void as to all creditors.

A number of cases have been cited from Missouri, and that state seems to hold that unless the mortgage is left for record as contemplated by the statute it is void as to any one who has been misled, to his injury.

In 123 Mo., 141, it is held that such a mortgage, as a matter of law, is void as to creditors, where the mortgage was withheld for the purpose of not impairing the mortgagor’s credit.

Cases cited from Michigan show that a mere withholding of the mortgage from record will work an estoppel against the mortgagee under the statute of that state as to chattel mortgages, although such withholding is done without any fraudulent intent.

In 137 Ind., 175, the court found the conveyance fraudulent in its inception, and that the withholding was one step in carrying out the fraud, and the coney anee was held fraudulent.

In Iowa the courts hold that the withholding must be with a fraudulent intent in order to give subsequent creditors preference over the mortgagee.

The courts of South Dakota hold the same as Michigan and so does the 20th Fed. Bep. And the same doctrine is held in the 29th Fed. Bep., 566. In 12 Wash., 190, the holding is in the same line as in the states of Michigan and South Dakota,; and Arkansas holds also the same.

In 73 Wis., 354, it is held that the withholding by agreement with the mortgagor makes it fraudulent as to intervening creditors, and cites 67 Wis., 103, as holding the same doctrine.

In 92 Ala.., 443, the holding is, that a mortgage purposely withheld from the record lest it might injure the mortgagor’s business and credit is fraudulent as to intervening creditors and to any one who gives up a security prior to the mortgage.

In 17 B. Mon., 779, it is held that if it is withheld by an arrangement or agreement, it can not prevail over a trustee for creditors.

The case cited from 50 Neb., 54, is one where the mortgage was held by agreement, with fraudulent purpose, of both parties to the mortgage, and it was held in that case that it was-fraudulent as against creditors.

In 53 N. J. Eq., 350, the court of that state construes the chattel mortgage act to make a mortgage, not left for record, inferior to all creditors whether before or after the mortgage and whether they be judgment creditors or not. .

We do not find that any of these courts intended to make a holding on the doctrine of estoppel entirely independent of a construction of the statute of chattel mortgages in the state;. although, in some of them, the statute is not mentioned by the court in connection with what it says on the ground of estoppel, yet the court, we believe, intends to say in all of them, that the chattel mortgage act is such that if the mortgagee withholds the mortgage either by agreement or by neglect to record it for any other reason, the statute can not protect the instrument, and the doctrine of estoppel will arise. But the courts of Ohio have not so construed our statute; and I need not cite the decisions in this state, as they are referred to in Judge Day’s opinion in Re Shirley, supra.

These mortgages were upon goods, among other things, where the mortgagee was left in possession and left free to transact business with the goods the same as though the mortgages were not given. Hence, under the authority in this state (Francisco v. Ryan, 54 O. S., 370), as to that class of goods, the mortgage would have been of no effect even if filed against creditors who obtained liens upon the property^ and the property mortgaged being largely of this nature, there was nothing to be gained in filing the mortgages. They would have accomplished but one purpose and that would be to make all creditors proceed at once to collect their claims from the company.

It is held in the last case cited, that a mortgage of this nature' constitutes a valid contract for a lien on such after acquired property, and possession thereof lawfully taken by the mortgagee has the same effect of protecting it in his hands from the claim of the mortgagor’s creditors as has possession taken of the property owned by the mortgagor at the time of the execution of the mortgage.

It is the holding of the court that the mortgages in question are prior in right as to the property acquired by them to that of the creditors, whether their claims arose prior to the mortgage or after the same was given, A decree may be drawn accordingly.