author: WINCH, J.

text:
    CARRIERS — PLEADINGS.
    [Summit (8th) Circuit Court,
    April Term, 1905.]
    Marvin, Winch and Henry, JJ.
    Thomas Phillips Co. v. Erie Railway.
    1. Common Carrier may Charge Reasonable Demurrage for Retention of Cars.
    A common carrier may make a reasonable charge for demurrage upon the failure of the consignee to remove freight from its cars within a reasonable time.
    2. Common Carrier may Refuse to Deliver Cars on Private Siding until De MURRAGE IN ARREARS IS PAID.
    A common carrier of freight is justified in refusing to deliver cars of freight upon the private siding of the consignee until he pays the demur-rage charged for the unreasonable detention of former cars placed upon his siding.
    3. What a Defense in Law to Action Seeking to Compel Common Carrier to Deliver Cars of Freight upon Private Siding of Consignee.
    In an action by the consignee of freight to compel a common carrier to deliver cars of freight upon his private siding, an answer alleging that ■ the consignee positively refused to recognize certain rules imposing a reasonable charge for demurrage upon cars unreasonably detained for unloading, and reserving the right to the carrier to refuse to deliver subsequent cars until all demurrage in arrears was paid, that consignee deliberately detained cars, thereby depriving- the carrier of their use, in addition to refusing to pay reasonable demurrage charges, and denying his obligation to pay anything for the detention of the cars, states a defense entitling the carrier to a hearing upon the issues joined.

      Appeal from Summit common pleas court.
    Grant & Sieber, for plaintiff.
    Tibbals & Frank, for defendant.
   WINCH, J.

Plaintiff brought its action against the railroad company, praying that the latter be ordered and directed to immediately deliver upon the plaintiff’s switch certain cars consigned to plaintiff and laden with merchandise belonging to it, and that the railroad company be further ordered and directed to receive from' certain other railroads and at once deliver upon said switch such further cars consigned to plaintiff as might in the future arrive, either upon such other railroads, or its own.

By an amended and supplemental petition plaintiff asks damages alleged to have been occasioned by the railroad company’s delay in delivering said described ears upon said switch.

The railroad company, by its amended answer, admits its refusal to set certain cars upon plaintiff’s switch, which cars, it alleges, it placed upon a public side track and notified plaintiff that they were there for its benefit. It then pleads certain car service rules, as follows:

“Defendant further says that prior to October 1, 1902, in order to secure the speedy unloading and return of cars and to avoid detention thereof by shippers and consignees, it made and adopted, and through the Cleveland Car Service Association of which it was and is a member, promulgated rules, providing among other things, that a charge of one dollar per day or fraction of a day would be made for delay to or storage in cars on all cars containing property shipped at car-load rates for any time beyond the so-called free time elapsing after such cars should be placed for unloading, and before the same should be unloaded, Sundays and legal holidays not being counted in the computation of the time elapsing, and the free time being ninety-six hours for cars containing coal and coke, and forty-eight hours for cars containing other commodities. By said rules it is also provided, in substance, that when cars are ordered to a private .siding for unloading, and the party so ordering them is delinquent in the payment of car service charges, defendant’s agent should decline to place ears on such private siding until such delinquency should be made good, and should thereupon notify the party using such private siding that his freight would be delivered or received only upon the defendant’s public team track until such delinquency should be made good.
“Said rules were in force continually from a date prior to October 1, 1902, to and since the commencement of this action, and of them plaintiff, during such entire period, had full notice and knowledge, and defendant says that said rules and said charges are reasonable, and other railroad companies, and railroad companies generally, have adopted and enforced the same rule or rules of like character.
“Defendant further says that all the shipments mentioned in the petition herein, and ordinary shipments of goods to plaintiff, other than of coal and coke, have been made under contracts, evidenced by the bills of lading under which said shipments have been made and transported. By the contracts of shipment and bills of la'ding it has been provided that, ‘ The delivering carrier may make a reasonable charge per day for the detention of any car, and for use of track after the car has been held forty-eight hours for unloading, and may add such charge to all other charges hereunder, and hold said property subject to a lien therefor,’ and further that, ‘Owner or consignee shall pay freight, and all other charges accruing on said property before delivery..’
“Defendant further says that in its shipments from its line of road to said private track occupied and used by plaintiff, for some time prior to the date referred to in the petition, when said cars were detained, the plaintiff had detained and held for storage purposes many cars of the defendant delivered on said spur track at plaintiff’s plant, and during the month of November, 1902, plaintiff detained as aforesaid, ten cars an aggregate of ninety days over and above the free time allowed by the rule. During the month of December , it detained six cars an aggregate of thirty-nine days over and above the free time allowed by the rule. During the month of January it detained eleven cars an aggregate of ninety-four days over and above the free time allowed by the rule. That the reasonable service charges for November were $90; for the month of December were $39; for the month of January $94, and although defendant had often requested plaintiff to pay said car charges, it had positively refused to pay the same or any part thereof.
“The defendant further says that in addition to the detention of said cars above recited, for a long time, to wit, more than two years prior to the commencement of this suit, that it positively refused to recognize the rules of the defendant with reference to the storage of the cars as above recited, but has deliberately and purposely detained cars, depriving the defendant of their use, and plaintiff in addition has refused to pay to the defendant the reasonable value of the said detention •of ears, has denied and denies its liability and obligation to pay anything to the defendant for detention of cars.
“Defendant says that because of plaintiff’s refusal to recognize said rules, and to pay any car service charges, it, on or about January 16, 1903, served dne notice upon plaintiff, that it would deliver no more freight upon said plaintiff’s private track, after January 21, 1903, until said car service charges for November, 1902, were paid, and on January 26, 1903, further notified plaintiff that it would not resume deliveries upon said private track till said car service charges for December, 1902, were also paid; and said ear service charges not being paid, defendant refused to deliver upon said private siding said three cars mentioned in the petition, but it placed them upon its regular public team track for plaintiff to unload, and at and up to the time of beginning this suit plaintiff was free to unload them there, except that as to said car No. 80115 the free time after such placing elapsed before this suit was begun, and car service charges accrued thereon, whereupon this defendant, through the medium of said car service association caused said car to be locked so that it should not be unloaded till such charges accruing thereon should be paid and its lien therefor extinguished by such payment.”

A demurrer filed to this amended answer raises the question of the reasonableness of the car service rules pleaded,' and the right of the railroad company to enforce them.

That forty-eight hours is a reasonable time within which a consignee should be required to remove freight from cars and that the railroad company might make a reasonable charge for demurrage upon failure to remove the freight within said time, was held by this court in the case of New York, L. E. & W. Ry. v. Seiberling, 4 Circ. Dec. 210 (8 R. 593), in this county.

In this case we have the additional question whether, upon the refusal of the consignee to pay demurrage already accrued, the railroad company can refuse to deliver other cars thereafter arriving.

We think both the rules were adopted by the railroad company for the one purpose alleged in the amended answer, ‘ ‘ In order to secure the speedy unloading and return of cars and to avoid detention thereof by shippers and consignees,” and not that the second rule was adopted for the purpose of enforcing the payment of demurrage already accrued. That such rule is reasonable and necessary for the proper operation of defendant’s railroad is alleged in the answer as follows:

“Defendant says that in the operation of its railroad plaintiff is required to use a large number of cars of various kinds to haul and carry the great volume of 'freight which is offered to it for transportation as a common carrier; and by reason of the transportation of through freight; that is, freight originating at points beyond defendant’s railway for delivery at points on its railway, large numbers of cars owned' by other railroads are offered to the defendant for transportation, and hauled by it over its railroad to points of destination or for delivery to connecting carriers. That the proper operation of its railway requires that it return to the owners or to the other carriers, as so'on as reasonably possible, all foreign cars coming on its lines. That for many months prior to the commencement of this suit, the volume of freight transported over defendant’s railroad, and over the roads of other carriers, has been unprecedentedly large, and that the proper handling of its freight and the discharge of its duties as a common carrier make it necessary that consignees of freight unload cars with all reasonable dispatch, and without unnecessary delay, that shippers and consignees do not unnecessarily detain the defendant’s cars.”

The further allegation that plaintiff positively refused to recognize these rules and deliberately and purposely detained cars, depriving defendant of their use, in addition to refusing to pay reasonable demur-rage charges, denying its obligation to pay anything for the detention of cars, we think makes a defense entitling the defendant to a hearing upon the issues thus joined.

“ The demurrer is, therefor, overruled.

Marvin and Henry, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    FENCES — EASEMENTS.
    [Summit (8th) Circuit Court,
    April Term, 1905.]
    Marvin, -Winch, and Henry, JJ.
    John MacGregor et al. v. Clara Linney.
    Boaed Fence Held to be a Building within Meaning oe Deed.
    A board fence eight or more feet in height, extending the entire length of the granted premises to the sidewalk, which shuts offi the view from the grantor’s remaining ground and dwelling-house, diminishes the air and light formerly enjoyed by him, and which is contrary to the intention of the parties as evidenced by the stipulations in the deed and the circumstances and condition of the property at the time of the conveyance, is a “building” within the meaning of a deed providing against the erection of certain buildings.
    Appeal from Summit common pleas court.
    Stuart & Stuart, for plaintiffs.
    Rogers, Rowley, Bradley & Rockwell, for defendant.
   WINCH, J.

Plaintiffs being tbe owners of certain premises on the westerly side of North Prospect street in the city of -Akron, on June 6, 1903, conveyed the southerly part of said premises to the defendant by warranty deed containing the following conditions and restrictions:

‘ ‘ On the express conditions, agreements and covenants between the parties hereto, their heirs and assigns herein named, viz., that for a period of fifteen years from and after the date hereof, said property so conveyed shall be used for, and occupied by, one building only, and that a family residence, and that no part of said residence shall extend any further toward North Prospect street than does the residence now occupied by said grantors, nor shall any part thereof extend nearer to the residence now occupied by said grantors than fifteen feet from the northerly line of the property hereby conveyed; that the grantee shall within two months remove the kitchen part of the present residence and shall within two years from this date build on said property a new residence of a minimum value of $5,000, and should the grantee desire to sell, she for herself and for her heirs covenants and agrees with the grantors and their heirs and assigns, that the grantors, their heirs and assigns shall be given the privilege of buying same at the price and on the terms in good faith offered for said property. The plan for the new residence to be subject to the approval of said grantors, their heirs and assigns.”

It is further alleged in the petition that upon said premises of plaintiff there is a valuable house which for many years has been and now is occupied by the plaintiffs as their residence ; that in the southerly side of said house there are amumber of windows, and that from said house and grounds an extensive and desirable view to the south along said street was, until the erection of the obstruction hereinafter described, enjoyed by the plaintiffs, and would, save for such obstruction, continue .to be enjoyed by them, even after the erection of the building stipulated in said deed.

Plaintiffs further say that the property on said North Prospect street is devoted entirely to residence purposes; that the houses in the block in which are situated all of the premises above referred to are built on practically a uniform line, distant about forty feet from said street; that said defendant accepted said deed with full knowledge at the time the same was delivered, of the. reasons for which said restrictions were made; that the defendant, well knowing the restrictions contained in said deed, and the purposes which the same were intended to serve, did, in direct and wilful violation thereof, and contrary to the plain spirit and intent of said instrument, on or about September 1, 1904, cause to be erected upon the premises so conveyed to her, within about a foot of the northerly line thereof, a certain building, to wit, a board fence eight or more feet in height, extending the entire length of said premises to the sidewalk on said street.

Plaintiffs say that by reason of the erection of said building, their said view from said dwelling house and' grounds is shut off and light and air which they otherwise would receive is diminished; as a result of which their said property is rendered of much less value than if such erection had not been made, and that by reason of the premises they are sustaining and will continue to sustain, while said structure stands, great and irreparable loss and injury, the amount of which cannot from its nature be estimated and satisfied by any action at law for damages.

These allegations of the petition we find to De true.

The prayer of the petition is, that defendant be enjoined from maintaining said fence as now constructed, and the sole question for our determination is whether it is a building within the intendment of thé condition in the deed.

The Century Dictionary defines “building” as follows:

“A structure, an edifice; as commonly understood a house for residence, business or public use, or for shelter of animals, or storage of goods: In law, anything erected by art and iixed upon or in the soil composed of different pieces connected together and designed for permanent use in the position in which it is fixed, is a building; thus, á pole fixed in the earth is not a building, but a fence or a wall is.”

Bouvier gives it as follows: “An edifice, erected by art, and fixed upon or over the soil, composed of different pieces of stone, brick, marble, wood or other proper substance connected together, and designed for permanent use in the position in which it is so fixed. ’ ’

Bouvier defines fence as follows: “A building or erection between two contiguous estates, so as to divide them, or on the same estate, so as to divide one part from another. It may be any material presenting a sufficient obstruction. ’ ’

While we are not prepared to say that all fences are buildings, we think that the structure here complained of and denominated a fence comes clearly within the meaning of the word “building” as used in the deed. In coming to such conclusion we have considered the situation of the parties at the time the deed was executed and their intention as shown by the use of said word in the light of all the circumstances and the conditions of the property.

That a fence is a building was held under the circumstances of the case reported in Wright v. Evans, 2 Ann. Pr. 308. The contrary was held under the circumstances of the case of Nowell v. Academy of Notre Dame, 130 Mass. 209. The digests indicate the same conclusion was reached in the case reported in Clarke v. Lee, 185 Mass. 223 [70 N. E. Rep. 47], but the volume is not in the library.

Under the circumstances of this case we hold that plaintiffs are entitled to the relief they pray for, and decree may be drawn accordingly.

Marvin and Henry, JJ., concur.


text:
    BILLS OF EXCEPTIONS — ERROR.
    [Summit (8th) Circuit Court,
    April Term, 1905.]
    Marvin, Winch and Laubie, JJ.
    (Judge Laubie of the Seventh Circuit sitting in place of Judge Henry.)
    Diamond Rubber Co. v. Addison H. McClurg.
    Bill or Exceptions Shows on its Face that it does not Contain all the Evidence, when.
    A hill of exceptions shows on its face that it does not contain all of the evidence, thereby precluding a reviewing court from considering the weight of the evidence, where it appears therefrom that a part of the evidence in the lower court consisted of illustrations or demonstrations by models of machinery, and there is nothing in the bill to show where the witnesses and counsel stood with reference to the models, what they pointed out, and where they placed their hands except by such words as “here,” “there,” “like that,” and the word “indicating” in parenthesis inserted by the stenographer.
    Error to Summit common pleas court.
    E. K. Wilcox, for plaintiff in error.
    G. M. Anderson and F. V. Owen, for defendant in error:
    Where there are latent defects, or hazards incident to an occupation, of which the master knows or ought to know, it is his duty to warn the servant of them fully, and failing to do so, he is liable to him for any injury that he may sustain in consequence of such neglect; and this rule applies even where the danger or hazard is patent, if through youth, inexperience, or other cause, the servant is incompetent to fully understand and appreciate the nature and extent of the hazard. Mather v. Rillston, 156 U. S. 391 [15.Sup. Ct. Eep. 464; 39 L. Ed. 464]; Coombs v. Cordage Co. 102 Mass. 572 [3 Am. Eep. 506]; Connolly v. Poillon, 41 Barb. 366; Wheeler v. Manufacturing Co. 135 Mass. 294; Dowling v. Allen, 74 Mo. 13 [41 Am. Eep. 298]; Mitchell v. Bohinson, 80 Ind. 281 [41 Am. Eep. 812]; Indiana Car. Co. v. Parker, 100 Ind. 181; Atchison, T. & 8. F. By. v.
      Holt, 29 Kan. 149; Shanny v. Androscoggin Mills, 66 Me. 420; Baxter v. Roberts, 44 Cal. 187 [13 Am. Rep. 160] ; Bannon v. Lutz, 158 Pa. St. 166 [27 Atl. Rep. 890]; Consolidated Coal Co. v. Haenni, 146 111. 614 [35 N. E. Rep. 162]; Lebbering v. Struthers, 157 Pa. St. 312 [27 Atl. Rep. 720]; Perry v. Marsh, 25 Ala. 659; Spellman v. Iron Co. 55 Barb. 151; Davis v. Turner, 69 Ohio St. 101 [68 N. E. Rep. 819],
    A verdict will not be reversed as against the weight of evidence unless palpably so; mere difference of opinion is not sufficient. Webb v. Insurance Co. 6 Ohio 456; McGatrick v. Wason, 4 Ohio St. 566; Breese v. State, 12 Ohio St. 146 [80 Am. Dec. 340]; Deaii v. King, 22 Ohio St. 118; Railway v. Howard, 40 Ohio St. 6.
   WINCH, J.

Defendant in error recovered judgment against plaintiff in error, by the consideration of the court of common pleas, for damages sustained by him in the loss of part of his left hand, which was caught between two large rollers of a machine in the rubber company’s works, by reason, as it is claimed by him, of negligence of the company in failing to warn him of certain latent hazards in the operation of said machine.

We are asked to reverse said judgment because the verdict is said to be against the weight of the evidence.

The impossibility of this court reviewing the weight of the evidence will be apparent by reading a few extracts from the bill of exceptions.

On page 10, question:

“Mr. Sherbondy, now suppose those are the rollers, Mr. Sherbondy (indicating to the witness by the use of two rolls of carboard, and a sheet of paper, the rolls being marked plaintiff’s exhibit rolls, and the paper being marked plaintiff’s exhibit slab), and we will say this represents the slab of rubber and it is being batched out, a man stands here in this position, lays the rubber slab on the rollers like that, and, as you have said, because of the compound; — now then, he has put his slab on there and because of the compounds which should work into' the slab it does not catch on the roller, so he puts his hands as you have described or one hand on the side of the roller this way, pressing the slab down on the hot roller where it adheres, now, I ask you what is liable to happen from this end of the slab turning over this way (indicating) 1
“Objected to; question withdrawn.”

I have read the question to show that the models used here were made a part of the bill of exceptions and were before the court at the hearing in this court.

“Q. When he has put his hand on this end next him to press the slab against the hot roller and make it adhere what may happen from the other end of the slab, the one farthest from him? A. Why, it is liable to turn back.
‘ ‘ Q. And do what ? A. Catch your hands; that is, if your hands are above the center of the roll.
“Q. Suppose they are there (indicating) ? A. That is above the center.
“Q. You call this the center of the roll (indicating) ? A. Yes, sir.
“Q. Away down here (indicating) ? A. Yes, sir. . \
“Q. You don’t mean this center, the top of the center? A. No, the top — center.
‘ ‘ Q. Suppose that it is here (indicating), what is liable to happen from the slab of rubber?
“Objected to.
“A. Liable to catch your hands.
“Objected to.
“Q. If your hand is there?
“Objected to.
“A. Yes, sir.
“Objected to.
“Mr. Wilcox: The objection is, that counsel insert elements in the question which do not appear to be the fact, and the second is the illustration, and the third is the guess of the witness in the answer.
“The court: These are at best illustrations, he does not say what did occur there. I think he has a right to describe the operation of that machine. I think I will let it stand so far.
“Defendant excepts.
“Q. Mr. Sherbondy, I will ask you the question generally now, and you may, if you please, describe to the jury the operation—
“Mr. Wilcox: If Your Honor please, may I have inserted in the record in connection with that question, that counsel for plaintiff by way of illustration took the sheet of pasteboard representing the rubber slab and turned it over indicating the manner in which counsel claims the plaintiff’s hand was caught?
“The Court: Yes.”

This shows that counsel for plaintiff in error fully understood that the record must show what was indicated by the witness, and yet this is all there is in the record anywhere exhibiting to this court what was so indicated. All through the record appear questions asked by counsel for both parties and answers given by the witnesses illustrated by the use of the models referred to. Just where counsel and witnesses stood with reference to the models, what they pointed at, and where they placed their hands are described in the bill of exceptions by such words as “here,” “there,” “like that” and the word ‘indicating” in parenthesis, inserted by the stenographer.

Some of this testimony was illustrated to this court on the argument of the case by counsel, but they disputed each other as to the correctness of some of the illustrations and the record furnishes no means of determining which was right. Indeed, without a re-enactment of the scene by the witnesses who appeared before the jury, much of the record is unintelligible. We are, therefore, forced to say that the bill of exceptions shows on its face that it does not contain all the evidence. Certainly it does not put this court in the position of the jury so that it can with equal facility determine the weight of the evidence.

For the reason stated the judgment must be affirmed.

Marvin and Laubie, JJ., concur.


author: PER CURIAM.

text:
    ENTAILED ESTATES — APPEALS.
    [Hamilton (1st) Circuit Court,
    1905.]
    Jelke, Swing and Giffen, JJ.,
    Augustus S. Ludlow v. Eliza L. Moore.
    Confirmation of Investment of Proceeds of Sale of Entailed Estate, a Pinal Order, within Purview of the Statute.
    An order confirming the report of a trustee as to the investment or other disposition of the proceeds from the sale of an entailed estate, under favor ' of Lan. R. L. 9340 to 9351 (R. S. 5803 to 5813), is a final order in a civil action in which the right of trial by jury does not exist, and is therefore appealable.
    Motion to dismiss appeal.
    A. S. Ludlow, for plaintiff.
    J. S. Connor, M. R. Waite, Boyce & Boyd and L. M. Mongan, for various defendants.
   PER CURIAM.

Laning R. L. 9340 to 9351 (R. S. 5803 and 5813), provide not only for the sale of entailed estates, but for the investment of the proceeds by a trustee under the direction and approval of the court, and an order confirming the report of the trustee, which shows the investment or other disposition of substantially all of the proceeds of sale, is a final order in a civil action in which the right to demand a jury does not exist and is therefore appealable. Spence v. Basey, 34 Ohio St. 42; Eaton & H. Ry. v. Varnum, 10 Ohio St. 622.

Motion to dismiss appeal overruled.


author: HULL, J.

text:
    VENDOR AND PURCHASER — SPECIFIC PERFORMANCE-PRINCIPAL AND AGENT — FRAUDS, STATUTE OF.
    [Lucas (6th) Circuit Court,
    November 7, 1904.]
    Parker, Hull and Haynes, JJ.
    Catherine B. Egle v. R. Morrison.
    1. Undisclosed Principal May Enforce Contract for Sale of Real Estate-Agency Proven by Parol.
    A written contract for the sale of real estate made and signed by an agent in his own name, and without disclosing his agency or the name of his principal, is binding on and may be enforced by the principal. The agency and assent of the principal may he established by parol evidence. Such contract satisfies the requirements of the statute of frauds.
    2. Signing by One Party Charged and Oral Acceptance by Other Sufficient Under Statute of Frauds.
    It is no defense to an action to compel the specific performance of a corn-tract required by the statute of frauds to be in writing, that it is not signed by both parties thereto; it is sufficient if it is signed by one of the parties to be charged, and is accepted by the other. Acceptance by tbe latter is shown-by bringing suit upon it.
    3. Marketable Title Only, and not One Unencumbered, Required by Deed Calling for "Good Warranty Deed,” etc.
    An obligation to convey real estate free from all incumbrances does not arise from an agreement calling for “a good and sufficient, full and covenant warranty deed, conveying to said purchaser a good title to said premises.” The effect of such agreement is, that there shall be tendered a good marketable title, and a warranty for it.
    4. Building Restrictions Against Property Waived When Purchaser Makes Contract With Full Notice Thereof.
    A prospective purchaser of residence property subject to certain ordinary building restrictions which run with the land, and apply also' to the adjoining property and that of the neighborhood, waives any objection he might otherwise have made on account thereof by. entering into a contract for the purchase of the property with full knowledge and express notice of their existence; such knowledge and notice may be shown by parol evidence. And the presumption being that such restrictions are beneficial, instead of a detriment to the property, they cannot, in the absence of evidence to the contrary, he classed as incumbrances unless they affect the marketable quality of the title.
    5. Substantial Defect Necessary to Defeat Ré^l Estate Contract oe Sale.
    A substantial defect must appear to warrant a court in refusing to enforce contracts for the sale of real estate; a mere captious or technical objection, lacking substance, is not sufficient.
    6. Objections to Deed Waived by Silence of Grantee, When.
    Where a real estate contract allows the vendor forty days within which to obviate any objection which vendee may make to the title, the failure of vendee, with full knowledge of the facts, to make any objection to a matter that might have been corrected, will constitute a waiver.
    Appeal.

      J. P, Mantón and H. A. Merrill, for plaintiff.
    Sheffler & Campbell, for defendant:
    Subagent. 1 Am. & Eng. Ene. Law (2 ed.) 972; Tynan v. Dullnig, 25 S. W. Rep. 465 (Tex.) ; Tynan v. Dullnig, 25 S. W. Rep. 818 (Tex.); Emerson v. Manufacturing Co. 12 Mass. (11 Tyng) 237 [7 Am. Dee. 66]; Bocock v. Pavey, 8 Ohio St. 270; Piatt v. McCullough, 1 O. F. D. 301; Mechem, Agency See. 1877, p. 132, 167, 179, 769; Great Southern Hotel Co. v. McClain, 4 Dee. 309 (3 N. P. 112).
    Specific performance. Walsh v. Barton, 24 Ohio St. 28; Hutchenson v. McNutt, 1 Ohio 14; Kirby v. Harrison, 2 Ohio St. 326 [59 Amf Dec. 677]; Scott v. Fields, 7 Ohio (pt. 2) 90; 3 Pomeroy, Eq. Jurisp. (2 ed.) 2172, n. 1; Taylor v. Browder, 1 Ohio St. 225; Potter v. Potter, 27 Ohio St. 84; Vought v. Railway, 58 Ohio St. 123 [50 N. E. Rep. 442]; 21 Am. & Eng. Ene. Law (2 ed.) 928; Hughes v. Roth, 7 Circ. Dec. 441 (18 R. 804) ; 7 Am. & Eng. Enc. Law (2 ed.) 125; Center v. Center, 38 N. H. 318.
    Building restrictions are encumbrances upon real estate. Stanley v. Bedinger, 1 Circ. Dec. 522 (2 R. 344) ; Lloyd v. Quimby, 5 Ohio St. 262; Isham v. Maichett, 10 Circ. Dec. 267 (18 R. 338) - Russell v. Harpel, 10 Circ. Dec. 732 (20 R. 127) ; 8 Am. & Eng. Enc. Law (2 ed.) 123; Roberts v. Levy, 3 Abb. Pr. (N. S.) 311; Halle v. Newbold, 69 Md. 265 [14 Atl. Rep. 662]; Kramer v. Carter, 136 Mass. 504; Locke v. Hale, 165 Mass. 20 [42 N. E. Rep. 331]; Hatcher v. Andrews, 68 Ky. (5 Bush.) 561.
   HULL, J.

This action was brought in the common pleas for specific performance, and an appeal was taken from the judgment of that court to this court. The action was brought by the vendor of a certain lot in this city against the defendant as vendee to require the vendee to pay to the plaintiff a balance of purchase money. It is claimed by the plaintiff that she made a valid and binding contract with the defendant to sell to him this lot, for an agreed price of $6,900; that $100 was paid down as earnest money and a contract was made it is claimed on February 2, 1904, that the balance of $6,800 was to be paid on March 1, following, and that a deed was to be delivered to the defendant. The plaintiff claims that she was ready with he? deed to deliver it on March 1, with an opinion of title, as required by the contract, and that the defendant did not come to The place specified and did not pay the money, or any part of it, and that afterwards on March 7, following, she tendered to him a deed of the property and an opinion of title and demanded the money and he refused to pay it and did not pay any of it, and soon thereafter this suit was commenced for specific performance.

It is claimed by defendant that no contract was ever made binding him to purchase this property. It is claimed that the title which she offered to the defendant was defective — that the property was encumbered in such a manner that he was not bound to take it and that, therefore, he cannot be required to specifically perform this contract; and it is further claimed by him, that the contract, if it was binding upon the parties, provided for stipulated damages to the amount of $100, the amount of the earnest money which he had paid, and that therefore, he cannot he required to pay the $6,800.

It is conceded by all that, by mistake, the lot was described in the writing in question as “lot 44,” when it should have been “lot 43” but that error may be considered as corrected. It appears from the testimony that the plaintiff was the owner of said lot 44, Mariette addition to the city of Toledo, in February, 1904, and that the defendant, Morrison, desiring to purchase a residence in the city of Toledo, looked at this property. The plaintiff, prior to that time had put the property into the hands of her husband, as her agent to sell it, and he had given the property for sale to Pepple & Co., real estate agents in this city, and they informed Morrison that they had it for sale, and he came to Toledo from Gibsonburg, Ohio, where he lived, went to the property and examined it and Mr. Egle, the husband of the plaintiff, in her presence and hearing and with her approval directed Pepple & Co., to close a contract with him for the property at $6,900, and to sign his, Egle’s, name to the contract— the title to the property being in the plaintiff, Mrs. Egle, and on February 2,1904, Mr. Pepple, of Pepple & Co., closed the sale with Morrison, for $6,900, and then the written contract or paper in question, was drawn and signed.

This paper provides that, “this memorandum witnesseth, that Thomas J. Egle through Pepple & Co., his agents, hereby agrees to sell and convey by warranty deed, and R. Morrison agrees to purchase at the price of $6,900, the following described real estate in the city of Toledo,” and then follows the description. The writing then recites that Morrison has paid $100 on the contract as earnest money “and agrees to pay on March 1, 1904, the further sum of $6,800 at the office of Pepple & Co., provided a good and sufficient, full and covenant warranty deed, conveying to said purchaser a good title to said premises (subject as aforesaid) shall be ready for delivery. A statement and opinion of title to be furnished at the time of the execution of said deed.” Then follow provisions as to the shades, screens, chandaliers, etc., and then comes this

“In case the title upon examination is found defective, and the defect is not cured within forty days from the date of this contract, the said earnest money shall be refunded to said purchaser, and this agreement shall then become inoperative. Should said purchaser fail to perform this contract on his part at the time and manner specified, the earnest money paid as above, shall at the option of the vendor and his agents, be forfeited as liquidated damages, and this contract shall become null and void. In testimony whereof,” etc., and signed, “Thomas J. Egle, per Pepple & Co. ” and "R. Morrison."

On March 1, Morrison did not appear at the office of Pepple & Co. to pay the money or to receive the deed and opinion of title which were ready to be delivered to him. The contract does not provide that they should be on deposit at the office of Pepple & Co., but on the fourth day following defendant wrote to Peppel & Co. that he feared that he would not be able to carry out this agreement, as he was having trouble in disposing of his property at Gibsonburg, and, unless he disposed of his property there, he would not want this property and that he was sorry to make any trouble for Mr. Egle. He made no complaint of the title, and on March 7, the plaintiff, or her agent, took to Mr. Morrison the deed and opinion of title, tendered them to him and he refused to accept them or to pay the money. He said he would show the opinion of title to his attorney; and the same day or soon after he returned the opinion of title to Pepple & Co. without any complaint as to the title, appearing to be satisfied with it.

The opinion of title showed that there was a building restriction upon this property, as upon all the property along the street, running with the land, providing that all houses should be built thirty feet from the street; that they should be of the value of $2,500; that no illegal or immoral business should be carried on in the buildings, or on the property, and the sale of intoxicating liquor was expressly prohibited. The provisions were what are commonly known as building restrictions, and it is claimed here that on account of those restrictions, which bound Mrs. Egle and the property and which became a part of this deed by virtue of their running with the land, she did not tender and could not tender to Mr. Morrison a good title.

It is claimed, first, that Morrison cannot be compelled to carry out this contract because Mrs. Egle was never bound by it. It is said that she gave this property to her husband as her agent, for sale; that he had no title in the property; that he made the contract in his own name for this sale and she did not sign it and that she was not disclosed aa his principal when his name was signed by Peppel. This contention, we think, is not tenable. We think that the law is, that where an agent has property for sale — as if Mr. Egle had it for sale and' if he made the contract — he may make the contract in his own name without disclosing his principal, and it will bind his principal. This has been decided by the Supreme Court of this state in the case of Thayer v. Luce, 22 Ohio St. 62. This is from the syllabus:

“On the trial of an issue under the statute'of frauds, the assent of the plaintiff to the terms of the contract may be shown by parol testimony.
“If the contract was made by the agent of the plaintiff in such a case, the agency may be established by parol testimony, notwithstanding the agent may have contracted in his own name, without disclosing his agency or the name of his principal in the transaction.”

This is on page 78 of the opinion:

“The provisions of the statute are complied with, if the names of competent contracting parties appear in the writing, and if a party be an agent, it is not necessary that the name of his principal should be disclosed in the writing. Indeed, if a contract, within the purview of the statute, be made by an agent, whether the agency be disclosed or not, the' principal may sue or be sued as in other cases. ’ ’

And on page 79, this is said:

“The remedial laws of the state are under legislative control, and as we understand it, the reciprocal right of parties to enforce certain contracts by action is taken away by force of this statute. If the written agreement in such- case be signed by one of the contracting parties and not by the other, the latter may enforce it by action, although the former may be remediless if the agreement be broken against him.”

It is claimed in this case that the contract could not be enforced by the plaintiff because he had never signed the contract; but it seems to be held by the Supreme Court that where the transaction is within the statute of frauds, as in this case, if one of the parties signed the contract,

the other may accept the contract and enforce it by action although he has not signed the contract at all. But, in the case at bar the contract was signed, or directed to be signed, by the plaintiff’s agent. We think the fact that Pepple signed Mr. Egle’s name to it, does not affect the question one way or the other. Egle directed him to sign his name to the contract, and it was as binding upon him as though he had signed i't with his own hand and although he did not own the property and was acting for an undisclosed principal, when Morrison signed the contract, it was binding upon him, and when it was accepted by Mrs. Egle, as it was afterwards, it, if course, became binding upon her, whether it was at the time her husband had his name signed to it or not; she did accept it afterwards by signing and executing a deed, which was tendered to Morrison on March 7. In Walsh v. Barton, 24 Ohio St. 28, the court say in the opinion on pages 39, 40:

“The only question, therefore, is whether it be necessary, in order to satisfy the statute of frauds, that the names of the principals should appear in the memorandum, in a case where the contract was, in fact, made by their agents, and the names of the agents are set out in the writing. We think the statute is satisfied in this respect, when the names of the agents are set out in the writing, though the names of the principals be not disclosed. The case being thus taken out of the statute, the right or liability of the principals may be enforced, and their identity established, according to the rules of law governing in other cases, -where contracts are made by agents without disclosing their principals. ’ ’

Renwick v. Bancroft, 56 Iowa 527 [9 N. W. Rep. 367] is to the same effect. The statute of frauds of course requires that there should b§ a memorandum in writing, signed by the party to be charged. / It only requires the signing of the contract by one party; the other party may accept the contract, and by bringing suit upon it, he does so. That seems to be the holding in this state, although in some states it is held that one cannot have specific performance unless both parties are bound originally by the contract. But it is held in Old Colony Ry. v. Evans, 72 Mass. (6 Gray) 25 [66 Am. Dec. 394], that a contract may be enforced although signed by only one party, and also in Dresel v. Jordan, 104 Mass. 407, 412.

Now as to the building restrictions; it was agreed in this contract that there should be delivered a ‘ ‘ good and sufficient, full and covenant warranty deed, conveying to said purchaser a good title to said premises. ’ ’ In other words, it was agreed that he should have a warranty deed. It has been held in this state that such an agreement is not an agreement that there will be no encumbrances upon the property, but that there shall be a good title and a warranty for it. Peoples’ Sav. Bank Co. v. Parisette, 68 Ohio St. 450 [67 N. E. Rep. 896; 96 Am. Rep. 672], first paragraph of the syllabus:

“Where a vendor of land has obligated himself by written contract to convey ‘by good warranty deed and abstract of title from organization of county,’ but the contract contains no stipulation for a deed containing a covenant against incumbrances generally, and none against any inchoate dower right, it is not essential to the performance of the contract by the vendor that his wife should join in the deed and release her right of dower.”

In Rife v. Lybarger, 49 Ohio St. 422 [31 N. E. Rep. 768; 17 L. R. A. 403], it is said in the syllabus:

“Where, in a contract for the sale of real estate, there is no stipulation * * * the vendor is only bound to tender a marketable title. ’ ’

In this case, there was an old mortgage upon the property which had become void by the statute of limitations, and it was held by the Supreme Court that that was not material and it was held that in any event, under a contract of this kind the vendor is only required to tender a marketable title, and some mere speck or trifling cloud Upon the title is not sufficient to defeat the vendor in his right to have the 'contract enforced.

But we think the evidence shows that, so far as this building restriction was concerned, Mr. Morrison had knowledge of it. Two witnesses testify that when he was at the house he asked about a vacant lot next door and he was told of these building restrictions upon the property upon the street and which would protect him in his property. More than that, it does not appear that that this building restriction was any damage to the property, but rather a benefit, if it were to be used for residence purposes; and Morrison was intending to use it for residence purposes and there was a valuable residence upon it at the time, and, in the absence of evidence to the contrary, it would be presumed that a restriction of this kind would be a benefit to him. Upon this proposition we cite Riggs v. Pursell, 66 N. Y. 193, 202, 203, where that question is discussed. But, in any event, the fact that he had notice of it deprives him of the right to set it up as a defense. He had notice of it before the contract was signed, and therefore, waived any right to complain of this restriction. He took the property and signed the contract with full knowledge that this restriction was upon it.

We cite McWhorter v. McMahan, 10 Paige 386, where this is said in the syllabus:

“Where a deed is delivered, in performance of a contract for the sale of land, if the purchaser has any objection to the deed itself, or to the description of the premises therein, or if he objects to accepting the deed upon the ground that the premises are incumbered, it is his duty to make the objection known at the time, so as to give the vendor an opportunity to obviate it.’

An English case more in point than this case, is found in Oglivie v. Foljambe, 3 Meriv. 53, a chancery ease. It is said in the syllabus:

“The right to a good title does not grow out of the agreement between the parties, but is given by law; but a purchaser may waive his right by going on with the agreement after he has full notice that he is not to expect a good title. This is, in such case, matter of notice, and not of contract.”

We think this notice can be established by parol evidence. The property was offered to Morrison for this price. He came to.see it and was given express notice of the building restriction and agreed to purchase it and pay .this price for it with full knowledge, and there being no evidence that this was any damage to the property, we think it cannot be called an incumbrance.

As to the claim that the parties agreed upon the sum of $100 as liquidated damages, it appears from the contract that this was at the option of the vendor. The plaintiff might keep the $100 which had been paid to her as liquidated damages, if she chose, or she might exercise her option to bring an action for specific performance, and she has chosen to do that. It seems to us that this was a fair contract made between these parties in good faith. Mr. Egle was representing his wife and had full authority to make this contract for her and with her knowledge and he had Pepple sign his name to the memorandum or contract. She accepted the contract and tendered to Morrison a deed and, so far as we can see, did all that was required of her to perform. The real trouble, as it seems to us and the failure of Morrison to complete the purchase grows out of the fact that he could not dispose of his Gibsonburg property and therefore did not desire to have this house.

Parties cannot defeat contracts of this kind by a mere captious objection. The court cannot help out a party who is simply, striving by some technical objection to defeat the right of a vendor to require him to carry out his contract; there must be some substantial objection, and if under a contract of this kind a good title is tendered — a marketable title —it is sufficient. This property was incumbered only by this building restriction, of which Morrison had full knowledge. It is objected that he did not get nor have tendered to him a warranty deed from Mr. Egle, as he claimed he was entitled to, as he had not understood that Mr. Egle was not acting for himself. But, in any event, this contract contains a prevision that, if there is any objection to the title, the vendor shall have forty days wherein to obviate it. No objection was made to the title by Mr. Morrison at any time, neither when the deed was tendered to him and the money .demanded, nor after he had examined the opinion of title, nor when he wrote his letter of March 4, to Pepple & Co. saying that he feared he would not be able to carry out the contract. Had he said that he desired a warranty deed from Mr. Egle, it undoubtedly would have been executed and tendered to him. He having made no objection of that bind, he must be held to have waived it. It may be unfortunate for Mr. Morrison to be compelled, under the circumstances in which he now is, to carry out this contract; but it seems to us that it Was a binding contract, and that the plaintiff is entitled to the relief which she asbs, and the order of the court will be that the prayer of the petition be granted and that Mr. Morrison be required to pay the balance of the purchase money, $6,800, to the plaintiff and some $44.29 dollars of assessments and taxes which are provided for in the contract, and that he pay the costs of this action.

Parker and Haynes, JJ., concur.


author: MARVIN, J.

text:
    NEGLIGENCE — MASTER AND SERVANT.
    [Lorain (8th) Circuit Court,
    May 8, 1905.]
    Marvin, Winch and Henry, JJ.
    George P. Walton v. Calvin Ensign.
    1. Agency of Driver need not be Affirmatively Proved when Ownership of Team and Wagon Shown; Ownership Makes Prima Facie Case of Negligence.
    Where a horse owned hy plaintiff was ran into and killed by a team of horses and wagon belonging to the defendant by reason of the careless and negligent manner in which the person in charge thereof was driving them, a prima facie case of negligence is imputed to the defendant by merely showing that he was the owner of the team and wagon referred to, without proving affirmatively that the person in charge was his agent or employe; and the action of the trial court, in such case, in arresting the case from the jury, and directing a verdict for the defendant because of the absence of such affirmative proof, is a reversible error.
    2. Where Inspection of Wagon Tongue Warrants Conclusion of Long Defective Condition, 'Question of Owner’s Knowledge thereof a Question fob Jury, etc.
    Where an examination or inspection of a wagon tongue, alleged to have been in a defective condition and unfit for the purpose for which it was being used at the time of the accident which is the basis of the present suit, is such that a man of ordinary carefulness might well conclude that it had been in a defective condition for a long time, the question as to the truthfulness of such allegations and defendant’s knowledge in the premises should be submitted to the jury.
    Error to Lorain common pleas court.
    F. M. Stevens, for plaintiff in error.
    L. B. Favoer, for defendant in error, cited:

      Beard v. Railway, 13-23 O. C. C. 169; Greeley Bros. v. Zeithaml, 25 O. O. C. 451.
   MARVIN, J.

The case of George P. Walton v. Calvin Ensign, is a proceeding in error brought here, seeking to reverse the judgment of the court of common pleas. The parties here are as. they were below. The plaintiff in error having been plaintiff below, and so of the defendant.

• Suit was brought by Walton against Ensign, setting up that on September 24, 1903, Ensign was the owner of a span of horses, harnessed to a wagon, and that by reason of the careless and negligent manner in which said team of horses were guided and driven by an agent and employe of Ensign, who had them under his charge, they ran away and ran against a horse owned by the plaintiff and killed it.

It is also charged in the petition, that the tongue or pole of the wagon, owned by Ensign, to which these horses were harnessed, and the neck yoke and neck-yoke ring were insufficient for the purposes for which they were used; that they were out of repair, and that that fact was known to Ensign, and that by reason of these negligent acts on the part of Ensign’s agent in permitting the team to run away and run into the horse of the plaintiff, and also by reason of the negligence of Ensign in permitting his wagon to be used in this, imperfect state of the pole and neck yoke, Ensign is liable in damages for the value of the property of the plaintiff, injured.

Ensign answered, admitting that he owned the team; that they ran away and killed the horse of the plaintiff. He denies all acts of negligence, and he avers that the plaintiff was himself negligent in permitting his horse to be where it was at the time of the injury.

At the close of the evidence offered on behalf of the plaintiff, which included as an exhibit a part of the wagon tongue or pole, some four and one-half feet long, the front part of that pole, a motion was» made to direct the jury to return a verdict for the defendant. The record reads:

“Whereupon counsel for defendant requested the court to arrest the testimony from the jury, and render a judgment for the defendant, on the ground that there was no evidence presented by the plaintiff as to the agency alleged in plaintiff’s petition; that there was no evidence presented by plaintiff, showing knowledge on the part of the defendant of the defects in the tongue, as alleged in plaintiff’s petition; that there was no evidence showing that there was any defect in the tongue as alleged in plaintiff’s petition, and that there was no evidence that the defendant' had in any way been negligent.”

This motion was sustained by the court, and the jury were directed to return a verdict for the defendant.

As has already been said, it is admitted by the answer that the team and the wagon which collided with the horse of the plaintiff and killed it, was the property of the defendant, Ensign.

There was no evidence, no witness testified to any agency of the man in charge of that team. And the court clearly understanding the law to require of the plaintiff that he establish the agency of the man in charge of Ensign’s team by evidence, before he could recover, and having failed to do so was not entitled to recover. We understand the law to be otherwise.

It is laid down in Shearman & Redfield, Negligence See. 158:

“When the .plaintiff has suffered injury from the negligent management of a vehicle, such as a boat, car or carriage, it is sufficient prima facie evidence that the negligence was imputable to the defendant, to show that he was the owner of the thing, without proving affirmatively that the person in charge was the defendant’s servant. It lies with the defendant to show that the person in charge was not his servant, leaving him to show, if he can, that the property was not under his control at the time, and that the accident was occasioned by the fault of a stranger, an independent contractor, or other person, for whose negligence the owner would not be answerable. This view is supported by decisions, in which it was held sufficient evidence of the defendant’s negligence to show that the plaintiff was injured by something falling out of the window of the defendant’s house, or from a hoisting apparatus belonging to the defendant.”

Supporting the same proposition is the case of Norris v. Kohler, 41 N. Y. 42. The syllabus reads:

“In an action for causing death in the streets of city, charged to have been by the negligence Of the defendant’s servants, evidence that the fatal injury was occasioned by a runaway span of horses and wagon, owned by the defendant, — held, sufficient to authorize.a jury to find persons in charge of such horses and wagon to be his servants, although engaged at the time in a business which appeared to be that of another person, whose name, as carrying on such business, was painted upon the wagon. ’ ’

And on page 44 of the opinion, the court say this:

“Whether the driver of the wagon was the servant of the defendant, the evidence consisted, first, of the fact of ownership. The property being proved to belong to the defendant, it is urged that a presumption arises that it was in use for his benefit, and on his own account. This argument, I think, is a sound one. The ownership of personal property draws to it the possession. * * * No proof was given in the present case, separating the ownership from the possession and the presumption of law is, tliat the wagon and horses of the defendant were in use in his service, and on his account. ’ ’

Entertaining the view that the law is .as declared in Shearman & Redfield, Negligence, which has been read, and as announced in the case from the opinion of which I have just read, we think it' clear that it was error on the part of the court to take this ease from the jury on the ground that no evidence had been introduced to establish the agency of the man in charge of this team.

And another ground on which the court took the case from the jury was, that there was no evidence showing knowledge on the part of the defendant of the defects in the tongue as alleged. As has already been stated, a part of that tongue, the part which it is claimed was defective,- was in evidence, and it is a part of the bill of exceptions; we think an examination of that tongue would show that one might well think that it had been in a defective condition for a long time, and if that be so, the jury might well have found, if they had been permitted to pass upon the question, that the owner of that team knew of the condition of that wagon pole. The neck yoke itself was not introduced in evidence, the ring of the neck yoke was not introduced; but the flange on the pole is defective; it is in a bad condition, and apparently has been so for a long time, and, surely then should have been submitted to the jury, the question, whether in the condition that wagon pole was, from its appearance, whether that did not make it probable that the owner, if a man of ordinary carefulness, would have known of its condition. The pole itself was evidence enough to go to the jury for them to pass upon the question of whether the owner had knowledge of its condition.

Reading further from Shearman & Redfield, Negligence See. 2, from which I have already read:

“Acquiescence in the constant use of a vehicle may make the owner responsible for the negligence of those-using it in connection with his business. And where an injury is caused by defects in a vehicle or its loading, which the owner was bound to remedy, it is immaterial whether the persons in charge were his servants or not. ’ ’

It should be said that the evidence shows that while this team was running, the pole of that wagon extended out to the front of the horses five feet or more. The condition of the pole was such, is such now, as that one looking at it knows that it is now defective; the fact that it is in the condition it is and has the appearance it has is well calculated to establish the proposition it had been in that negligent condition for a long time, and we think it was clearly error for the court to direct the jury to return a verdict for the defendant. The judgment is reversed and the case remanded to the court of common pleas.

Winch, and Henry, JJ., concur.


text:
    BENEFICIAL ASSOCIATIONS — ESTOPPEL.
    [Summit (8th) Circuit Court,
    April Term, 1905.]
    Marvin, Winch and JTenry, JJ.
    The Chevaliers v. Marvin Shearer.
    1. Certificate, Constitution, etc., of Beneficial Association Constitutes Contract between Members and Association.
    The certificate, constitution, rules and regulations, and by-laws of a beneficial association constitute the contract between the association and its members.
    2. Member of Beneficial Association not Entitled to Share in Benefit Fund fob Permanent Loss of Hand, when.
    Where a certificate issued by a beneficial association to one of its members provided that if the holder, by accident, lose one of his hands, he shall be paid one-fourth the face value of the policy from the benefit fund, and that “this certificate is issued subject to, and to be construed and controlled by, the constitution, laws, rules and regulations of the order,” the holder thereof is not entitled to recover for a permanent loss of one of his hands unless it be amputated at'or above the wrist, where the constitution provides for payment only in such case, and this notwithstanding the holder had no actual knowledge of such latter provision.
    3. Trustees of Beneficial Association may Adopt Rules Concerning Conduct of Business.
    The first trustees of a beneficial association have power to adopt a provision which concerns the conduct of its business, such as providing that the members shall not be entitled to share in the benefit fund for loss of a hand unless amputation at or above the wrist follows the injury.
    Error to Summit common pleas court.
    Dayton A. Doyle, for plaintiff in error:
    In a beneficial association the certificate, constitution and by-laws constitute the contract between the members and the association. Bacon, Ben. Soc. Sec. 161; Masonic Mut. Ben. Soc. v. Burkhart, 110 Ind. 189 [10 N. E. Rep. 79; 11N. E. Rep. 449]; Worley v. Aid Assn. 10 Fed. Rep. 227; O’Brien v. Supreme Council, 81 App, Div. 1 [80 N. Y. Supp. 775].
    The certificate and the constitution and standing regulations of the order constitute the contract which controls the payment of benefits. Grand Lodge A. O. V. W. v. Gandy, 63 N. J. Eq. 692 [53 Atl. Rep._142]; Bost v. Supreme Council, 87 Minn. 417 [92 N. "W. Rep. 337]; Modern

      Woodmen of America v. Tevis, 117 Fed. Rep. 369 [54 C. C. A. 293]. See L. & A. Ins. D. (1902), M. B. Secs. 17, 92-94; Insurance Man’s Practical Digest (Annual 1903), page 461; Act of April 26, 1904, 97 O. L. 421, Sec. 8.
    Insurer is presumed to know the conditions of Ms membersMp and cannot plead ignorance. Union Central Life Ins. Co. v. Hook, 62 OMo St. 256 [56 N. E. Rep. 906]; Allen v. Insurance Co. 123 N. Y. 6 [25 N. E. Rep. 309]; Walsh v. Insurance Co. 73 N. Y. 5; Monitor Ins. Co. v. Buffum, 115 Mass. 343.
    Young & Wannamaker, for defendant in error.
   WINCH, J.

The defendant in error brought his action against the plaintiff in error, which is a beneficial association incorporated under the laws of Ohio, to recover for the loss of a hand under a certificate issued to him by the association, plaintiff in error, of which he was a member, in which certificate it is provided:

“If the said Marvin Shearer, the holder hereof, by accident, lose one hand,' * * * he shall be paid one-fourth of the face hereof, * * * said amount being paid from the benefit fund of the order. ’ ’

The case was tried upon an agreed statement of facts, from which it appears that by accident the plaintiff was injured about the middle of May, 1901; “that as a .result of said injuries his right arm has been permanently disabled, the full use and service thereof having been practically destroyed, but neither said arm nor hand has been amputated. ’ ’ The certificate sued upon contains the following provision:

“This certificate is issued subject to, and to be construed and controlled by, the constitution, laws, rules and regulations of the order. ’ ’

Attached to the agreed statement of facts, and referred to in it as Exhibit A, is a pamphlet entitled: “Constitution, rules and regulations of the supreme council, The Chevaliers, Akron, Ohio, governing grand councils and subordinate councils” which the statement of facts says “is the constitution, by-laws, rules and regulations used by said order, enacted by the said association. ’ ’

Section 53 of said constitution reads as follows:

“In case the holder of a beneficial certificate shall by accident lose one hand by amputation at or above the wrist, or one foot at the ankle, and in case of the permanent loss or total loss of sight of one eye, he shall receive from the benefit fund of the order one-fourth of the face of the certificate.”

Plaintiff raises the question whether these rules and regulations were lawfully adopted by the order, which we shall consider later, first taking up the contention of defendant that because plaintiff did not “by accident lose one hand by amputation at or above the wrist,” as provided in See. 53, he is not entitled to recover.

That in a beneficial association the certificate, constitution, rules and regulations and by-laws of the order constitute the contract between the member and the association has been held frequently. In this case the express tfems of the certificate make the constitution, laws, rules and regulations part of the contract. But the certificate and the constitution, laws, rules and regulations do not agree in the provisions relating to the loss of a hand. The certificate says, “by accident, lose one hand.” The constitution, laws, rules and regulations say: “By accident lose one hand by amputation'at or above the wrist.” Manifestly plaintiff below has not been injured and is not entitled to recover as provided in the constitution, laws, rules and regulations. But which provision controls ? The certificate says it is issued subject to, and to be construed and controlled by, the constitution, laws, rules and regulations. We think that settles the question. Plaintiff must bring himself within the provisions of said .Sec. 53, and having failed to do so is not entitled to recover.

But plaintiff claims that Sec. 53 was not lawfully adopted by the association and that he is not bound by it. We think the admission in the agreed statement of facts, that exhibit-A, “is the constitution, bylaws, rules and regulations used by said order, enacted by the said association, ’ ’ should preclude plaintiff below from raising this question, but we have examined into the facts stated regarding its enactment.

It appears that the first meeting for the purpose of effecting an organization was held at Akron, November 30, 1900; at that meeting a board of trustees was chosen and a resolution passed that articles of incorporation be filed in Columbus. This was pursuant to Sec. 3631-17 Rev. Stat. which further provides that the certificate filed as aforesaid shall set forth (B) the number of trustees, directors or similar officers and their names, who shall manage the concerns of the corporation for the first year, or until the ensuing annual meeting.

February 4, 1901, a meeting of the trustees was held, and they adopted the constitution, laws, rules and regulations referred to.

We take it that in Ohio a corporation not for profit is governed somewhat as a corporation for profit is; the fundamental law or constitution is-adopted by the members who elect trustees; the trustees adopt by-laws for their own government in the management of the business of the association. By the statute just quoted the trustees of fraternal beneficial associations like tbe defendant for tbe first year are entrusted with the management of the concerns of the corporation. Whether the trustees had a right to adopt a constitution providing, for instance, how-many trustees there should he — a fundamental law — is doubtful, but that they bad a right to adopt Sec. 53, which concerns only the conduct of the business of the association, we have no doubt.

Plaintiff was a charter member of the defendant association; a manuscript copy of the said constitution, laws, rules and regulations was on file in the office of the association from February 4, 19(|L; plaintiff’s application for a benefit certificate is dated January 11, 1901; and the certificate was delivered and issued to him February 7, 1901; he was injured on March 15, 1901; and although he never saw a copy of said by-laws until after April 7, 1901, we hold that he is hound by said See. 53 and that the same is a part of his contract for benefits.

The court of common pleas having come to a contrary conclusion, its judgment is reversed.

Marvin and Henry, JJ., concur.


text:
    PLEADING — VARIANCE—SIDEWALKS.
    [Lucas (6th) Circuit Court,
    October 17, 1904.]
    Parker, Hull and Haynes, JJ.
    Toledo (City) v. Minnie Willinger.
    1. Variance not Material Unless Adverse Party Misled to His Prejudice.
    A variance between the petition and proof is not material unless the defendant has been misled to his prejudice in making- his defense upon the . merits.
    2. Description in Petition not Construed Like Description in Indictment.
    A description in the petition of the place where plaintiff sustained injuries, in an action to recover for damages sustained from falling on a defective sidewalk, will not be construed as strictly as,the description in an indictment.

      3. No Material Variance When Portions of Same Street Known by Different Name, etc.
    Where one portion of a street is known by a certain name, and the other portion thereof by another name, and the petition, in an action against a municipality to recover for damages sustained from falling on a defective sidewalk, alleges that the accident occurred on a certain street, the fact that the evidence shows that the accident occurred just a few feet from the dividing line of the two portions, and on the portion known by the other name, is not such a variance as will defeat a recovery, there being no claim, or attempt to show at the trial, that the municipality was misled thereby to its prejudice.
    Error to Lucas common pleas court.

      C. K. Friedman, for plaintiff in error.
    E. L. Twing, for defendant in error.
   HULL, J.

This action was brought by the defendant in error, who was the plaintiff below, against the city to recover for personal injuries, which she claims she sustained by falling on a defective sidewalk in the city. She alleges in her petition that the defective sidewalk was in Griffin street, that part of Griffin street extending from Western avenue to Gordon street, and on the westerly side of the street; and she alleges that between said Western avenue and Gordon street on said Griffin street the plank sidewalk was old, damaged, worn, defective, etc.

The ease was tried before the court and jury, and there was evidence tending quite strongly to show that the defective walk, if there was one, was on a street now called Mozart street and not on Griffin street. And, on the other hand, there was evidence tending to show that the defective sidewalk at the place where the woman fell was in fact on Griffin street. At the close of the testimony and before the argument the city, through its solicitor, asked the court to charge the jury as follows:

“1. Before the plaintiff can recover, she must prove by a preponderance of the evidence that she fell on a defective walk on Griffin street, in the city of Toledo.
“2. If you find from the evidence that the plaintiff fell on a walk on Mozart street in the city of Toledo, then your verdict must be for the defendant. ’ ’

These requests were both refused. And the court charged the jury in his general charge that it was not necessary to prove that the defective sidewalk was at the exact or precise spot laid in the petition “to an inch,” the court saying; “It is essential and required that she allege where she was hurt in order that the city may be advised and know what the- proof will probably be, when it comes in, and be able to prepare its case, and if one portion of a street be named by one name and another portion of the same street by another name, the fact that an accident occurred across the street or line called by one name upon a portion of the street called by another name, would not defeat the recovery, would not be such a variance as would defeat the recovery.” And the court charged the jury that they must be satisfied that the defect in regard to which evidence had been offered, was the one that was counted upon by the plaintiff in her petition.

Counsel for the city urge that the action of the court in refusing to give the above requests was erroneous, for the reason that the plaintiff was not entitled to recover, unless the evidence showed that she fell upon the street named in her petition, to wit, Griffin street, and claiming that the evidence showed that she did not fall upon Griffin street, but upoD Mozart street, and that therefore she was not entitled to recover.

The trial resulted in a verdict for the plaintiff in the sum of $500,, upon which judgment was entered.

The refusal of the court to charge the jury as requested raises the sole question in the case. The plaintiff alleged in the petition that the accident occurred on Griffin street, between Gordon street and Western avenue. There was a distance of about two squares between these two streets. It appears from a plat introduced in the ease that Griffin street run in a northwesterly direction toward Western avenue, until it was within about 113 Meet of Western avenue, then the street turned due. north and from that point on to Western avenue it is now, and has been since 1898 called Mozart street, and was formerly known as Ann street. The accident occurred near a lot owned by a Mr. Sapp, fronting on Western avenue and running back to Griffin street, the rear end of the lot fronts on Griffin street, the west side of the lot is, on Mozart street. At. the rear of the lot was a barn which fronted or abutted on Griffin street. Griffin street came up diagonally toward Western avenue, as I have said, until it reached a point at the distance named, about 113 feet from Western avenue, then the street turned north, and there the name-changed to Mozart street. Some of the witnesses testified that the defective sidewalk was at the rear of Sapp’s lot on Griffin street. Others-testified that the defective sidewalk was at the east side of Sapp’s lot, which would be around the corner on Mozart street. They all agreed that the defective walk was near Sapp’s barn, which was at the rear end of his lot. And from the testimony of the plaintiff we think it quite probable that she fell just around the corner of Griffin and Mozart streets. She says, ‘ ‘ It was just at the curve, near the barn. ’ ’ She is not. very definite or very clear as to whether it was on Griffin or Mozart street, she thinks it was Griffin street. And it is apparent from her-petition that she and her counsel were of the impression when the petition was prepared that Griffin street extended around the corner on through to Western avenue. Evidently neither the plaintiff nor her-counsel had any knowledge of any change in the name from the corner-on north. She fell, either on Griffm street, or a few feet from Griffin street on Mozart street near where the turn was made and the street under the name of Mozart street, then runs due north to Western avenue. The accident occurred, either at the rear of Sapp’s lot, or just around this corner upon the east side of his lot. There was evidence tending to show that it occurred in fact, upon Griffin street, or that the defective sidewalk was on Griffin street; and, on the other hand, evidence tending to show it was on Mozart street; we think it probably was just over the line on Mozart street, and the question is, whether, if that be true, it constituted such a variance as was fatal to the plaintiff’s case. Laning R. L. 8806 (R. S. 5294) provides that:

“No variance between the allegation in a pleading, and the proof, shall be deemed material, unless it has actually misled the adverse party to his prejudice, in maintaining his action or defense upon the merits, and when it is alleged that a party has been so misled, that fact must be proved to the satisfaction of the court, and it must also be shown in what respect he has been misled; and thereupon the court may order the pleading to be amended, upon such terms as are just.”

There is no claim in this case that the city was mislead by this allegation in the petition, and the proof that was offered upon the trial,, and no attempt was made on the trial to prove or show to the court that-the city had been misled or prejudiced by reason of that. The statute-provides that in order to make a variance material, it must appear that-the adverse party has been misled to his prejudice in his action or defense upon the merits. The questions in this case, the real issues were,, whether the plaintiff had been injured on account of a defective sidewalk within the city of Toledo; whether the city had been negligent in that, regard and whether the plaintiff had been guilty of contributory negligence. It was not very material where the sidewalk was, so that it was within the limits of the city of Toledo. But to enable the city to defend the case properly, and procure its evidence it was necessary that the plaintiff allege in her petition where the defect was. And if the claims of the city are true, her counsel made a mistake of a few feet in stating in the petition that it was on Griffin street instead of on Mozart street. But after an examination of the record, we are clear that the city was not misled by this allegation in the petition; that it was not prejudiced in any way in making its defense.

There does not seem to have been any other defect in that neighborhood that would mislead the city in preparing its defense. Counsel and everyone connected with the case seemed to know where this alleged defect was in the sidewalk. The purpose of the allegation in the petition was to advise the city where it was. It either was on Griffin street, as I have said, or just beyond the turn on that part of the street called Mozart. It was really all one street, and one not acquainted with the city, if there were no street signs up, walking along there would have no reason to suppose that the name of the street changed at this curve, where Griffin street ran into Mozart, or Mozart street run into Griffin, as you may call it, — about as Adams street in Toledo runs into Ashland avenue. The plaintiff describes this defective sidewalk as being in Griffin street instead of Mozart street. There was, as stated, some conflict in the evidence as to which street it was upon; but if it were conceded that it was in that part of the street called Mozart, we cannot find from the record that the city would be prejudiced in any respect by such a mistake in the petition. It was not very material whether these defective boards were on one side or the other of that corner.

There are decisions of the Supreme Court under Lan. R. L. 8806 (R. S. 5294) on the question of variance, which indicate the view of the-court upon this subject: Piatt v. Longworth, 27 Ohio St. 159, 160; Ralston v. Kohl, 30 Ohio St. 92; Lake Co. (Comrs.) v. Ashtabula Co. (Comrs.) 24 Ohio St. 393, 399. The fourth paragraph from the syllabus in the case of Piatt v. Longworth, supra, page 160, is as follows:

“To constitute a variance between the allegations and the proofs, • the difference must be as to the substantial elements of the case, and not as to legal conclusions from the facts drawn by the pleader. ’ ’

A petition in a case of this character should not be construed as strictly as an indictment. A description of the place where the plaintiff fell will not be construed as strictly as the description or allegation of ownership in an indictment. The allegation is made for the purpose of advising the city where the accident occurred and for no other purpose; and we are unable to see that the city was misled by this mistake, if there was one in the petition, or suffered any damage or prejudice from it, nor was that claimed upon the trial. It is not claimed that the evidence is not sufficient to warrant a verdict and judgment in favor of the plaintiff upon the facts shown in regard to the sidewalk and injury. The judgment of the court of common pleas will therefore be affirmed.

Parker and Haynes, JJ., concur.