text:
    GROUNDS SUSTAINING AN ATTACHMENT.
    Circuit Court of Cuyahoga County.
    Christopher Schloupt v. Joseph T. Thompson.
    Decided, January 12, 1906.

      Attachment — Work and Labor — No Other Ground Necessary — Bill of Exceptions.

    1. In an attachment case where the affidavit alleges, and there is evidence tending to show that the claim is for work and labor, on error the judgment sustaining the attachment will be affirmed, though the trial judge sustained the attachment upon other grounds.
    2. Where the trial judge certifies that the bill of exceptions contains all the evidence, “except the testimony set out in plaintiff’s exceptions, which exceptions have been allowed,” and said exceptions are not allowed to the bill of exceptions, or in any manner made a part of it, the bill of exceptions can not be considered.
   Winch, J.; Henry, J., and Marvin, J.,

concur.

The petition in error in this ease calls for a review of the action of the common pleas court iñ sustaining an attachment, which the transcript says was “sustained on the second ground 'of the affidavit.”

As the affidavit does' not separately state and number the grounds on which the attachment was claimed, we are somewhat in doubt as to which is the second ground, but counsel for both parties in their briefs seem to agree that said second ground wás that the defendant (plaintiff in error) “has assigned, removed and disposed of, or is about to assign, remove or dispose of his property, or a part thereof, with intent to defraud his creditors. ’ ’

There is however another ground alleged to which counsel have not called our attention, and that is that the claim was for manual work and labor. Why our attention was not called to that allegation as a ground for attachment we can not conceive. If the motion to dissolve the attachment was properly overruled for any reason, it is the duty of this court to affirm the judgment, no matter what reason the trial judge gave for his judgment.

Thé statute, Section 6849, in plain language provides that in an action for work and labor before a justice of the peace — and this attachment was sued out before a justice of the peace, and carried on appeal to the common pleas court — the plaintiff may-have an order of attachment when the affidavit therefor sets forth merely the nature of the plaintiff’s claim, that it is just, the amount affiant believes the plaintiff ought to recover, and that the property sought to be attached is not exempt from execution, without mentioning any of the nine particulars the existence of one or more of which must be stated when the action is not for work and labor.

The concluding words of the first paragraph of the statute are: “and except when the claim is for work and labor, or for necessaries, also the existence of some one or more of the following particulars.”

We construed this law with regard to necessaries in the ease of K. B. Co. v. Batie, 25 C. C., 482, and what was there said with regard to actions for necessaries is equally applicable to actions for work and labor.

Hence, in the case at bar, it appearing from the affidavit that the claim'was for work and labor, it was unnecessary to allege, and so unnecessary for the court to consider, any evidence as to whether the defendant was about to dispose of his "property with intent to hinder, delay or defraud his creditors, provided the claim was in fact for work and labor.

On this subject it appears that Thompson was sworn and testified in his own behalf as follows:

“I am a painter by trade and I painted the house of Charles Bracker, 121 Ethel street, Lakewood, for Chris. Sehloupt, who is a carpenter contractor, and Sehloupt owed me $55, the balance due. I told Sehloupt that Mr. Bracker, the owner of the house said; there was $55 for me at the office of Peskind & Perris, and that there had been a settlement with Sehloupt. I asked him in the presence of Taylor and Hart, who went "with me to Van Ness avenue, why he didn’t pay me the $55, as he had settled with Bracker, and Sehloupt answered ‘You owe me $90 and I didn’t settle with Bracker and I will fix it so you won’t get the $55, and if you don’t get out I’ll knock your head off.’ I didn’t want to make any trouble so I went away.”

Whereupon the court sustained the said motion of the defendant in part, to-wit, that the ground alleged in the said affidavit of plaintiff for attachment that the claim was for work or labor did not exist; and ordered the evidence confined to the other grounds alleged in said affidavit.

Why the court made this ruling, if it did, we can not understand, if the bill of exceptions contains all the evidence offered on this point. Clearly there was showing sufficient to sustain the allegation that the claim was for work and labor, and the introduction of any evidence as to the existence of other grounds for attachment was unnecessary. As this ruling was in favor of plaintiff in error, he can not complain of it. Nor is it necessary to consider the other grounds for sustaining the attachment.

There is another reason why this judgment must be affirmed.

The bill of exceptions is not in shape to be considered by this court.

It appears that the bill was filed in the trial court and thereupon exceptions were filed to it, under the statute. There is an entry on page three of the bill as follows:

‘‘This was all the evidence offered by the plaintiff to sustain the issue on his part, except the testimony set out in plaintiff’s exceptions, which exceptions have been allowed. ’ ’

Said exceptions are not attached to the bill of exceptions or in any way made a part of it. The paper writing containing them is part of the files, but we can not look to the files for evidence, as has frequently been held by this court regarding affidavits not made part of the bill of exceptions.

It thus appearing affirmatively from the bill of exceptions that it does not contain all the evidence, and the questions involved requiring a consideration of all the evidence, the judgment must be affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    NO APPEAL FROM REFUSAL TO STRIKE CROSS-PETITION FROM THE FILES.
    Circuit Court of Cuyahoga County.
    The National Union v. Stella De Mellett.
    Decided, January 29, 1906.

      Appeal and Error — Final Order.

    Overruling a motion to strike a cross-petition from the files is not a final order from which an appeal may he taken.

      Burton <& Bake, for plaintiff in error.

      Max J. Pfister and Alex. H. Martin, contra.
   Winci-i, J.; ITenry, J., and Marvin, J.,

concur.

The plaintiff below, Stella De Mellett, brought her action in the common pleas court against the National Union, to recover on a benefit certificate of said association, claiming as widow of Alphonse De Mellett, a deceased member thereof. The association answered denying that she was the widow of said Alphonse De Mellett and alleging that his membership in said association lapsed during his lifetime by reason of non-payment of dues. Upon application of Yictorie Spwekhoff, Louise Wite and Margaret Werner, they were made parties defendant to the action and filed their cross-petition claiming to be entitled to the benefits under the same certificate issued to said Alphonse De Mellett, as his heirs at law.

The National Union thereupon filed its motion asking that said cross-petition be stricken from the files, claiming that the court had no authority to permit said heirs to become parties defendant to the action without its consent. This motion was overruled, whereupon, and before trial of the issues between the parties, plaintiff in error filed its petition in error in this court to -reverse the ruling' of the common pleas court in refusing to strike said cross-petition from the files.

We hold that this action of the common pleas court was not a final order (as defined in Section 6707, Revised Statutes of Ohio), which in effect determined the action and prevented a judgment. For aught that appears the plaintiff in error may yet succeed in its defense to the action, which is still pending in the common pleas court. The petition in error was prematurely filed and this court is without jurisdiction to entertain it and so it is dismissed. Holbrook v. Connelly, 6 O. S., 199.


author: Winch, J.; Henry, J., and Marvin, J.,

text:
    INJURY RESULTING FROM CARELESS MENDING OF A CHAIN.
    Circuit Court of Cuyahoga County.
    Erie Railroad Company v. Nellie McDonnell, as Administrator of the Estate of Patrick McDonnell, Deceased.

    Decided, January 16, 1906.

      Master and Servant — Negligence—Assumed Rislc.

    Where the evidence shows conclusively that a servant familiar with the nature of the work upon which he Was engaged was present while a broken chain was mended and saw how it was mended, and the chain again broke at the mended place allowing a load to fall upon and kill him, he must be deemed to have assumed the risk and it is the duty of the trial court to direct a verdict for defendant.

      Cushing & Clarke, for plaintiff in error.

      Meyer Mooney, contra.

       Affirmed without opinion, McDonnell v. Erie Railroad Co., 77 Ohio State, 623.

   Winch, J.; Henry, J., and Marvin, J.,

concur.

This is a proceeding in error to reverse a judgment recovered m the common pleas court by the defendant in error for the wrongful death of her decedent by the alleged negligence of plaintiff in error.

The petition, in effect, alleges that Patrick McDonnell, on the day when he was killed, was working for the Erie Railroad Company as a common laborer on a pile driver, driving piles under the direction of a foreman of said company; that in lifting heavy logs into position to be driven as piles, he was furnished a short chain to be hooked around the logs so that the lifting rope might be attached; that this, chain had been broken and mended with wire in a careless and negligent manner; that while one of the piles was being lifted into position by means of a derrick and said imperfect and improperly repaired chain, “the said chain and the said wire so as aforesaid used in the said improper repair thereof, through the said negligence of said foreman and the said defendants, suddenly parted, broke and gave way at the said point of the said improper repair thereof, thereby releasing and causing the said pile to fall upon, crush and kill the said decedent.”

The answer admits that the Erie company owned the pile driver machine and its appliances; that McDonnell was killed while engaged in driving piles by reason of the parting of said chain, but alleges that decedent knew, or by the exercise of ordinary care could have known, the condition of the chain which parted, but without objection continued to use it for the purpose for which it was being used at the time the accident occurred. It thus pleads that McDonnell assumed the risk attendant upon the use of the defectively mended chain, and it further alleges that his injury was caused and contributed to by his own negligence and the negligence of his fellow servants.

'A reply filed by the plaintiff denies that McDonnell knew, or could have known the defective conditions of the chain and avers that he had no knowledge thereof.

It thus appears that this was an action brought by a servant against his master to recover for defects in the appliances used in the business and under the rule laid down in Wood on the Law of Master md Servant, 414, quoted with approval by Judge Minshall in the Norman case, 49 O. S., 598, 607, it was necessary for the plaintiff to establish three propositions:

1. That the appliance was defective.

This is conceded by the pleadings.

2. That the master had notice thereof, or knowledge or ought to have known.

This was established by the evidence, for it was shown that one Malmsten was a foreman in the employ of the company and in charge of the manner in which the work was being done at the pile driver by McDonnell and others, and that he knew of the defective mending of the chain and either did the mending himself or assisted McDonnell in the mending.

3. That the servant did not know of the defect, and had not equal means of knowing with the master.

This proposition must be examined in the light of the case of The Pennsylvania Company v. McCurdy, 66 O. S., 118, the .syllabus of which reads as follows:

“An employe experienced in the service in which he is engaged is conclusively held to appreciate the dangers which may arise from defects of which he has, or in the exercise of due care, might have due. knowledge. ’ ’

The evidence in this case shows that while McDonnell was a day laborer, he had been .employed as such in and about pile drivers, using chains such as were used in this ease and for the same purpose, for six or seven years off and on. J. A. Smith, his former employer, testified to this and was uncontradieted. We do not think it would require any special knowledge or skill to enable a laborer to understand the nature and use of an ordinary chain, and its adaptability to the purpose for which it was furnished, but if it does McDonnell was clearly an ‘ ‘ employe experienced in the service.”

There remains, then, for inquiry the sole question: did McDonnell know of the defect, or did he have equal means of knowing with the master ?

The record shows that the chain was broken while the men were at work; McDonnell and all the men knew that it was broken; they all stopped work and had nothing to do for from fifteen minutes to half an hour, until it was mended. The claim was not taken away to a blacksmith for repair, but was mended on the spot with wire picked up on the dock and run twice through the links. The links were of % inch iron; the wire was from 2-16 to 3-16 inches in thickness; two strands were of less strength than the iron; it is conceded that the mending was defective.

The plaintiff’s witnesses testified that McDonnell was present when the repair was made. Coyne (pp. 48 and 49) : “McDonnell was about 10 feet away — he saw the chain being fixed— he couldn’t help but see it — he was standing there looking at all the'operations.”

Brooks (p. 113) : “The whole crew was there. Q. McDonnell was there? A. Yes, sir, the whole crew.”

Cannon (p. 141) “McDonnell was standing near Mileke and Malmsten when they were making the repair, probably five feet or so away. (p. 166) McDonnell was there all the time when they were mending the chain, and we were all looking on. (p. 167) “Q. McDonnell was there all the time, he saw what was being done, he saw the chain was broken, didn’t he? A. Yes, sir, he knew it.

“Q. Could he have helped knowing and seeing it? A. No, sir. ’ ’

Sprague (p. 245); “McDonnell wpn right there when the chain was fixed.”

Two of defendant’s witnesses testified that McDonnell himself made the repair: Mielke (page 263) and Malmsten (page 285), when they started to work with the mended chain, McDonnell hooked it onto the log, or assisted in so doing.

We think the whole record shows conclusively, as indicated by the passages read and referred to, that McDonnell was aware of how the chain had been mended, and as the defect was patent and pertained to a simple ordinary tool, it obviously, on its face, suggested to him the question: Is this chain, as mended, strong enough? Will it lift this log weighing about a ton? If he made up his mind that it was .strong enough, he acted upon his own judgment and assumed the risk of its breaking. If he thought it not strong enough, he should have refused to use it, for he was under no compulsion to go forward.

There is a common saying that a chain is only as strong as its weakest link. McDonnell knew this, and was called upon to examine the mended link before he proceeded. lie had equal means with his employer of knowing about the defect. Such being our conclusion, it follows that the plaintiff failed to establish the third proposition above stated, and was not entitled to recover on the'facts of the case.

Considerable criticism of the charge as given by the trial judge has been made by counsel for plaintiff in error, but we find the charge not open to the objections made to it, when considered as a whole. On the conceded, controlling facts of the case, however, the trial judge should have directed a verdict for the defendant.

The judgment is therefore reversed because it is contrary to the law and the evidence, and proceeding to render the judgment which the trial court should have rendered, judgment is entered for the plaintiff in error.


author: Winci-i, J.; Henry, J., and Marvin, J.,

text:
    ACTION TO QUIET TITLE.
    Circuit Court of Cuyahoga County.
    Edward A. Stockwell v. Margaret A. Gambell, et al.

    Decided, February 17, 1906.

      What Sufficient Possession to Maintain an Action to Quiet Title-Possession of Husband Not Constructive Possession of Wife— Heirs of Mortgagee Not in Possession Ho Not Inherit Any Rights to Property.

    1. A grantee who goes upon lands which are part of an open common and locates and measures the lots which he has purchased, intending thereby to take possession of them, although he leaves no physical impress of his presence upon the lots, is nevertheless in possession and may maintain an action to quiet title.
    2. Where the husband of a mortgagee was in possession of a larger tract of land including the mortgaged premises, at the time the mortgage was given, and remained in possession after condition broken, and until the death of the mortgagee, the possession of the husband can not he construed as the possession of the wife, 'so as to give her heirs legal title to the mortgaged premises.
    3. No rights of possession pass to the heirs of a mortgagee not in possession.

      Snider & Slocltwell, T. M. Bales and Dissetle ■& Dissetlte, for plaintiff in error.

      Joseph Moore, While, Johnson, MoGaslm <& Gannon and J. A. Fenner, contra.

      Affirmed without opinion, Wilson v. Stockwell, 78 Ohio State, 394.

   Winci-i, J.; Henry, J., and Marvin, J.,

concur.

This case was heard upon appeal and involves the title to ñve vacant lots on Lovejoy street, near the city limits.

The plaintiff alleges that he is the owner and in possession of said lots and asks that his title be quieted as against the claim of certain of the defendants, who are the heirs of Margaret Harrison and William J. Harrison and of certain other defendants, who are the heirs of Warren Farr.

All the parties claim under one John F. Usher, who received a deed of the premises from Stackpole and Osborne on January 5, 1877, on which day he mortgaged said premises to Margaret Harrison to secure the payment of two notes of said date, each for $583.50, payable in one year and two years respectively.

Plaintiff claims under a deed from said John F. Usher, dated July 26, 1899; the Harrison heirs claim under said mortgage and the Farr heirs claim under an assignment of said mortgage. There has never been any foreclosure of the mortgage, but the claim is that the mortgage took possession of the premises after the condition of the mortgage was broken, in 1878, and that she, her heirs and assigns, have been in possession of the premises ever since.

A determination of the case depends upon the question of possession, as to which the evidence is very meager and unsatisfactory and necessarily so, because, for at least the last ten or twelve years, the land has been part of an open common.

Of course, if plaintiff is not in possession of the premises, he can not maintain his action. He testified that he went upon the premises, when he got his deed, located and measured the lots and intended thereby to take possession of the premises. He has been upon the premises about thirty times since, but has left no physical impress of his presence upon the lots, nor has he paid taxes thereon, or exercised any other acts of ownership over the lots. There are certain outstanding tax titles on the lots and part stands forfeited to the state of Ohio. We are inclined to think, the lands being vacant and open, apparently unclaimed by anybody else, that Stockwell’s intention to take possession by going upon the land after he received his deed, must be considered as fixing the character of his act, as held in the case of Clark v. Potter, 32 O. S., 49, and cases therein cited.

Now what are the claims of the defendants? They depend upon whether possession was ever taken under the mortgage of Margaret Harrison, for no twenty-one years exclusive and adverse possession can be claimed by them under the facts of the case.

Under the rulings in the cases of Kerr v. Lydecker, 51 O. S., 240, and Bradfield v. Hall, 67 O. S., 316, it appears that while there has been no such thing as strict foreclosure so-called, in Ohio, since the adoption of the civil code in 1853, yet, as between the mortgagor and mortgagee, after condition broken, the legal title to the mortgaged premises is in the mortgagee, and ejectment may be brought upon the mortgage to recover possession of the premises. From this it is argued that if the mortgagee takes possession of the premises after his legal title has become absolute by reason of breach of the conditions of the mortgage, he needs no action of ejectment, and the mortgagor or his assigns, may recover the possession only by offering to redeem. This conclusion seems sound.

With this view of the law in mind, what are the facts as to the mortgagee, or those claiming under her, having taken possession of the premises here involved?

It seems that William J. Harrison, husband of the mortgagee, in 1873 owned about thirty acres of land, including the five lots in question. He sold the thirty acres to Stackpole and Osborne and they subdivided the land into lots and laid out Lovejoy street, on which these five lots front. The subdivision was recorded and furrows or gutters run, defining the street on the land.

But Harrison appears to have remained in possession of twelve to sixteen acres of the land, which'Avas enclosed by a fence on four sides, and included the five sub-lots. He cultivated the lots, and raised crops thereon. Under what arrangement Harrison retained possession, we do not knoAA', but it must have been under his grantees, Stackpole and Osborne.

Harrison was in possession of these lots in 1877, when Stack-pole and Osborne sold to Usher and appears to have continued in possession in a rather uncertain manner, until about 1894. He was in possession when the mortgage under which defendants claim was executed to his wife; he was there when its conditions were broken and he was there Avhen she died in 1885.

There is no evidence that Margaret Harrison, the mortgagee, ever had possession of these lots, and while her husband may-have attended to some business for her, his possession of fifteen acres of land, including these five lots of perhaps an acre in all, can not be construed'as her possession.

When Margaret Harrison died in 1885, title to the mortgage notes did not pass to her heirs. The syllabus of the case of McBridge, Admr., v. Vance, decided by the Supreme Court February 2, 1906, reads :

“1. As a general rule administration is a prerequisite to the devolution of the personal estate of a decedent.
“2. The personal property of a deceased person does not vest in his heirs, but is in abeyance until administration is granted, and is then vested in the administrator, by relation from the time of death, and no right of action on a promissory note belonging to a deceased person is shown by a party in an action' on the note, by proof of possession and that he is the sole heir of the decedent.”

But it is claimed that Margaret Harrison’s legal title under the mortgage passed to her heirs. Her legal title, however, Avas incomplete; she lacked possession. True, she had the right of possession, but the most that can be claimed is that her naked title, with this right of possession, passed to her heirs, and that, in trust for the owner of the notes.

The heirs of Margaret Harrison never attempted to exercise any right to take possession of the premises, but shortly after their mother’s death they executed to their father, William J. Harrison, a quit-claim deed conveying to him “all the title, interest and claim to any and all lands, parcels of land and rights in land owned and possessed by said Margaret Harrison at the time of her death, and which by her death and intestacy has devolved upon us the said grantors, all of said lands and interests in lands being in the 14th ward in the city of Cleveland, county of. Cuyahoga and state of Ohio. It being the purpose and design of this conveyance to transfer to and vest in said grantee, 'not only such real estate as said Margaret-Harrison held at the time of her decease in fee simple, bnt also any and all equitable interests held by her at her death and descendable to her heirs, howsoever described, and wheresoever found. Por a more particular description of which so far'as the same is possible, and can be ascertained of record, reference is hereby made to all records and titles of said Margaret Harrison, in the recorder’s office of said county. ’ ’

If any interest or right in the five lots passed by this deed to William J. Harrison, who was then in qualified possession of the premises, perhaps, by reason of his cultivation of the soil, gathering of hay, or pasturing of his cattle thereon, which -one witness testifies to, it was the naked legal title without any. beneficial interest, of course, under the law of this state, followed the notes, and they never became the property of William J. Harrison.

One of his sons-in-law who, after the death of William J. Harrison in May, 1899, was appointed and acted as administrator of his estate, testifies that Mr. Harrison continued to cultivate and make some use of the fifteen acres of land, including these lots, for about nine years after his wdfe’s death, or until 1894, when the fences were thrown down, or fell down, and the lots became part of a common over which everybody traveled at will and on which many different persons ^pastured their cows.

In 1899, four years later and just previous to his death, it is likely that William J. Harrison delivered the mortgage notes to Warren Farr, whose executor was permitted to testify that she found said notes among the effects of said Warren Farr, after his death, as also a paper writing reading as follows:

“Cleveland, 0., April 24, 1899.
“Received from Warren Farr ten dollars. Down payment of $100 to be paid by said Warren Farr to W. J. Harrison for a quit-claim deed on sub-lots Nos. (five in all) and all papers belonging to said sub-lots to be turned over to said Warren Farr.
“$10.00 W. J. Harrison.”

The notes were unendorsed and there is nothing to connect the receipt with either the notes or the lots in question, and it is in evidence that Harrison and Farr had dealings about other lots.

Some effort was made to show that Warren Farr attempted to take possession of these lots in 1899, by removing some top soil therefrom and driving over the lots, but it must be conceded that his possession of the notes gave him no title to them, for that was in abeyance, awaiting administration upon the estate of Margaret Harrison, and the receipt is no conveyance of any legal title to the land.

As first stated, in July, 1899, plaintiff went upon the land with the intention of taking possession thereof under his deed from Usher. He found the lots vacant, unenclosed and used as a common. Under the facts as testified to at the hearing, we think we had a right to believe, as we find, that there was no “mortgagee in possession,” to dispute his title or possession.

We have no trouble in arriving at the conclusion, from the evidence, which an attempt has been made to recite fairly, that neither Margaret Harrison, nor any one lawfully claiming under her mortgage, ever had or took possession of the premises in dispute, and if William J. Harrison ever attempted or intended so to do under color of title to the mortgage, he abandoned his possession at least five years before the plaintiff took possession.

It follows that plaintiff has established his legal title to and possession of the premises, and having brought this suit in April, 1901, more than twenty-one years after the maturity of the notes secured by the Margaret Harrison mortgage, all rights thereunder claimed by defendants are barred by the statute of limitations.

As to the fax deeds pleaded by the Farrs, they being ineffectual to pass title, account must be taken of the amount due for taxes paid, as provided by the statute,. and a lien therefor provided in the decree drawn in accordance with the holdiug herein announced, quieting plaintiff’s title as prayed for by him.

Judgment for plaintiff.


text:
    GIFTS INTER. VIVOS AND CAUSA MORTIS.
    Circuit Court of Cuyahoga County.
    John Delfs, Executor of the Estate of Peter J. Weiss, Deceased, v. Pauline Yeager et al.
    Decided, February 26, 1906.

      Gifts — What'Evidence of Delivery Insufficient to Establish a Gift Causa Mortis — What Sufficient for Gifts Inter Vivos — Evidence of Relation of Parties Admissible.

    1. Evidence that donor handed donee a hank-hook, telling her that it and the money it represented were hers, and that thereafter the donor took hack the bank-book to make arrangements at the bank to secure the payment of the money to the donee, after which it was never redelivered to the donee, while not establishing a gift causa mortis may be sufficient to establish a gift inter vivos.

    2. Evidence of services performed by the donee for the donor of an alleged gift is competent as showing the relationship between the parties, a motive for the gift and an intention to make one.

      W. G. Rogers, for plaintiff in error.

      J. A. Fogle, J. G. Heald and Squire, Sanders & Dempsey, contra.
   Winch, J.; Henry, J., and Marvin, J.,

concur.

The contention in this case is about money deposited on a savings account and represented by a bank book issued by the defendant, the Lorain Street Savings Bank Company. Peter J. Weiss in his lifetime was the owner of this money or bank account, and Pauline Yeager claims that Mr. Weiss gave her the bank book and the money represented thereby on' Sunday, July 23, 1904, two days before he died. The plaintiff in error claims that no such gift was ever made and claims the fund for administration as part of the estate of the deceased.

Litigation over the matter begun by Mrs. Yeager suing the bank for the money. The bank, by interpleading, brought the money into court and brought in the executor as a rival claimant for the fund. The issues being made up between the claimants of the fund, the case went to trial to a jury, the executor excepting to a jury trial, however, which raises one of the questions to be reviewed here. The plaintiff claimed the fund as a donatio mortis causa, and it was submitted to the jury on that theory by a charge which omitted all reference to the law on the subject of gifts inter vivos.

The jury found specialty that a gift had been made and that it was a gift caxmi, mortis. Judgment was accordingly entered in favor of Mrs. Yeager, whereupon the executor perfected proceedings in error to this court. We think there was no error in submitting to a jury the issues of fact between the claimants of the fund. McGinnis v. Schwab, 24 O. S., 336.

From the bill of exceptions it appears that Peter J. Weiss was about eighty years old at the time of his death, on Tuesday, July 25, 1904. He was possessed of considerable money which he had saved by his frugality during a long life. This money was on deposit in various savings banks in the city of Cleveland.

The old man had no family and had lived alone for many years. There were two grand-daughters of his deceased wife, and these step-grandchildren, if they may be so called, were remembered in the old man’s will.

Mr. Weiss had an accident several years before his death, as a result of which he suffered pains in his back. The plaintiff, a woman in humble circumstances, had nursed the old man, washed for him, rubbed his back, made nourishing soup for him and cared for him with many kindly offices and for a long time. He occasionally visited her at her home and took meals there. She says he had paid her for all her services and it seems he owed her therefor nothing but gratitude. Exceptions were taken to testimony along these lines, but we think it entirety competent as showing the relation between the donor and donee, a motive for the gift and an intention to make one.

On the Sunday preceding’ his death, Mr. Weiss went to the home of Mrs. Yeager, arriving there about dinner time. When he appeared Mrs. Yeager said, “Why, how badly you look,” and he answered: “I feel as bad as I look.” Something was said by him indicating that he did not expect to live long.

Then Mr. Weiss gave Mrs. Yeager the bank book in question, telling her it and the money in the bank represented by it were hers. The words of gift as testified to by several witnesses, were absolute and without conditions, or reference to death. Mrs. Yeager took the bank book and put it in her bosom. Then Mr. Weiss requested her to give him the book again that he might go to the bank with it the next day and have it fixed so that she would have no trouble about drawing the money, telling her that if he could not attend to the matter, she would find the book at his house behind Washington’s picture, or in the Bible.

Thereupon the book was handed back to the old man and afterwards he spoke of the book and money as belonging to Mrs. Yeager. The old man never went to the bank with the book and died on the following Tuesday evening. At his bedside were Mrs. Yeager and several persons. It is claimed that Mrs. Yeager repossessed herself of the bank book by direction of Mr. Weiss that evening, before he died. The record, however, shows this point was disputed by several witnesses and there is no competent evidence that such was the fact. It seems clear that the book was in the Bible when the old man died and- Mrs. Yeager took possession of it later.

Counsel for defendant undertook to examine the plaintiff as to what she had at one time told him regarding what had occurred at the death bed; -upon examination by her own counsel as to the whole conversation, she was permitted to say, over objection, that she had informed him that Mr. Weiss before he died told her to take the book and that she did so at once. We think there was no error in permitting the witness to give this entire conversation, but it can not be considered as evidence of what in fact did occur, and so the trial judge ruled and instructed the jury.

The serious and troublesome part of this case is the charge of the court. It was framed upon the theory advanced by the plaintiff that the question to be decided by the jury was whether or not there had been a donatio mortis causa. No directions were given as to the requisites of a gift inter vivos, and yet we think the judgment is sustainable upon that ground alone.

From the evidence as to what occurred at Mrs. Yeager’s house on Sunday, the jury might have properly found a gift inter vivos. That Mr. Weiss was then sick and died two days later, would not necessarily reduce a gift then completely executed, to one causa mortis.

“The fact that the donor is near death is not of controlling importance in determining whether the gift-is causa mortis, or inter vivos. * # * The test whether the gift is one inter vivos or one causa mortis, is not the mere fact that the donor is in extremis, and expects to die, and does die of that illness, but whether he intended the gift to take effect in praesenh, irrevocably and unconditionally.”

See note XIII gr. to the case of Johnson v. Colley, 99 Am. St. Rep., 884, 917 and cases cited.

It becomes important in this ease to determine to which class the gift claimed belongs, because of the fact that the bank book was returned to the donor that he might take it to the bank ‘ ‘ so that the donee would have no trouble in drawing the money. ’ ’ The court charged that the donor might have possession of the book as agent for the donee and such possession would be the constructive possession of the donee. This rule is correct as applied to gifts inter vivos. See the case of Martin v. Funk, 75 N. Y., 134, quoted with approval by Judge Follett in the case of Gano v. Fisk, 43 O. S., 462, 472.

But as to gifts cama mortis, the rule appears to be otherwise. At least there are strong reasons, growing out of the vital.distinction between the two classes of gifts, which have brought us to such conclusion.

A gift causa mortis is revocable, but a gift inter vivos is not. For this reason it has been held with regard to the revocable class of gifts:

“Not only must there be a delivery, but the possession of the donee must be a continued one, and the donor have parted with all control and dominion over the subject matter of the gift in favor of the donee, so as to put it out of his power to repossess himself thereof, and no further act be required on his part to vest the title in the donee.” Johnson v. Colley, 99 Am. St. Rep. 884, 895, note IVa, Thornton on Gifts, 211.

Gifts of this class are not favored in law, because of tbe ease with which fraud may be practiced. To be valid they must be made in the last sickness and unrevoked. Possession by the donor at his death is very strong evidence of revocation and after his death the temptation to fraud and perjury is so great that the bars against it should not be let down. These considerations do not usually intervene in the case of gifts inter vivos, where the donor can testify in his own behalf.

We are well aware that to conclude, as we have in this case, that there might have been a valid gift inter vivos two days before the donor’s death, not good as a gift causa mortis, because the bank book was in the donor’s possession at his death, weakens the force and conviction of the reasons stated, but we have intimated our views regarding the two classes of gifts, because the case’ must be again submitted to a jury.

It is doubtful if any jury will go astray if required to find, under proper instructions, whether a gift of either class was made by Mr. Weiss.

For error in the charge the judgment is reversed and the cause remanded for a new trial.


text:
    JURISDICTION OF COURT OF INSOLVENCY ON APPEAL FROM JUSTICE OF THE PEACE.
    Circuit Court of Cuyahoga County.
    F. T. Edgar et al v. Robert Lenz et al.
    Decided, June 4, 1906.

      Appeals Gan Not be had from Justice of the Peace to Insolvency Court of Cuyahoga, County — Jurisdiction of Subject-Matter Not Conferred by Consent of Parties.

    1. The Insolvency Court of Cuyahoga County has no jurisdiction to entertain appeals direct from justice courts.
    2. Jurisdiction of a subject-matter can not be conferred on a court by consent of parties. ,

      Eranlc L. Kuhn, for plaintiff in error.

      Hessenmueller c& Schmidt, contra.
   Winch, J.; Henry, J., and Marvin, J.,

concur.

This case involves the validity of a judgment recovered by plaintiffs in the Insolvency Court of Cuyahoga County in a ease originally brought by plaintiffs before a justice of the peace and then appealed by them directly to the said court of insolvency, where judgment was rendered in their favor.

This court has heretofore held that the Insolvency Court of Cuyahoga County has no jurisdiction to entertain appeals direct from justice courts, affirming the judgment of Judge Bushnell of the insolvency court, in the case of Serhant v. Englebury, 50 Bull., 68, and we see no reason for now reversing that ruling.

But it is said that the parties to the case entered their appearance in the court of insolvency and consented to its jurisdiction.

Jurisdiction of a subject-matter can not be conferred by consent. The right to hear a case on appeal from an inferior court is conferred by statute, touches the subject-matter, and can not be created by consent. This has been held so frequently that it is idle to cite authorities.

The common pleas court having arrived at the same conclusion, and having held said judgment of the insolvency court to be void, its judgment is affirmed.


author: Winch, J.; Henry, J., and Laubie, J.,

text:
    UNREASONABLE DELAY IN TENDER. BACK OF GOODS.
    Circuit Court of Cuyahoga County.
    The Winton Motor Carriage Co. v. Clarence M. Busch.

    Decided, June 4, 1906.

      Sales — Rescission for Breach of Warranty Must he Made Within a Reasonable Time.

    Where vendee claims a breach of warranty and rescission of a contract of sale with a tender back of the goods, evidence consisting of correspondence between the parties at a time six months before the goods were tendered hack, in which vendor denies the existence of a warranty, shows an unreasonable delay in making the tender back and defeats vendee’s right to recover the purchase price.

      Sterling Parks and W. E. McHorris, for plaintiff in error.

      Carr, Stearns Chamberlain, contra.

      Affirmed without opinion, Busch v. Winton Motor Carriage Co., 77 Ohio State, 619.

   Winch, J.; Henry, J., and Laubie, J.,

concur.

Clarence M. Busch brought his action against the Winton Motor Carriage Company in the Common Pleas Court of Cuyahoga County and filed his petition as follows:

For a cause of action the plaintiff says that on or about the first day of June, 1903, he purchased from the defendant a Winton motor carriage of the model 1903, for an agreed price of twenty-five hundred and thirty-four dollars and forty cents ($2,534.40).

Plaintiff says that at the time of said purchase he stated to defendant that he would buy the said motor carriage only upon the condition that the said motor carriage was capable of making and maintaining a speed of forty-five miles an hour, and that the defendant represented and expressly warranted that said motor carriage could and would make good and maintain a speed of forty-five miles an hour.

Plaintiff says that relying, upon said representations he bought said motor carriage on or about the'4th day of June, 1903, and on the said 4th day of June, 2903, paid to the defendant twenty-five hundred dollars ($2,500) upon said purchase price, and on the 30th day of July, 1903, paid the said thirty-four dollars and forty cents to defendant, the said tyenty-five hundred and thirty-four dollars and forty cents being the purchase price in full of said motor carriage.

Plaintiff says that the said motor carriage did not and could not make and maintain a speed of forty-five miles an hour and did not and could not make and maintain a speed of thirty miles an hour, and that he immediately notified defendant that the said motor carriage was not able to maintain said required speed of forty-five miles an hour and at the request of the said defendant returned said motor carriage to the defendant for repairs and for the purpose of changing the said motor carriage so as to make it conform to said warranty, and that between the 9th day of July, 1903, and about the first of November, 1903, the said defendant had said motor carriage in their possession from time to time and endeavored to fix and change the same to make it conform to said warranty, but were unable to do so.

Plaintiff says that on the 23d day of January, 1904, he notified the defendant that the said motor carriage was held by him subject to the order of the defendant' and offered to return the same upon the repayment of the said sum of twenty-five hundred and thirty-four dollars and forty-five cents ($2,534.45), with interest as aforesaid from June 4th, 1903.

It will be noticed that the plaintiff bases his cause of action upon a sale and delivery of the machine on June 6, 1903, on which day he paid $2,500 of the purchase price and on July 30, 1903, the balance of $34.45, and a rescission of the contract and tender back of the machine on January, 23, 1904, some seven months and seventeen days later. lie stands squarely upon an alleged rescission of the contract.

An amended answer filed by tbe defendant denies tbe alleged warranty that the machine Avould run forty-five miles an hour and all allegations except the sale and delivery of the machine for the price stated and the payment thereof.

The case was tried to a jury, which found for the plaintiff in the full sum claimed by him, the trial court submitting to it three questions:

1. Whether the sale was made upon the conditions that the stipulated speed could be maintained.

2. Whether the car could make the stipulated speed.

3. Whether, under all the circumstances, the plaintiff tendered back the car within- a reasonable time.

The court instructed the jury that it must find for the plaintiff on each proposition, in order that the plaintiff might recover.

The plaintiff’s evidence consisted largely of letters written by him to the company and its agents and received by him from them.

They exhibit many troubles that the purchaser had with his machine and complaints with regard thereto; and he complains that the machine did not go fast enough to suit him. But it would seem that the jury did not give the proper weight to three letters which passed between the parties on July 17,' 18 and 20, 1903. I will read them: \

“July 17, 1903.
“Mr. C. M. Busch,
Atlantic City, N. J.
“Dear Sir: Your letters of the 14th and 16th received, also your postal card of yesterday. There is a little side play in the crank shaft of all the touring ears, to be sure it is not much, but it is there and you need have no worry on that account. I am unable to send you the freight bill from the Pennsylvania Railroad as it has been mislaid, but I am trying to get the duplicate of it. I do not know what you can do as the rate is for 6000 pounds and not 4000 pounds. I am sending you another spring to be put in the breaker box plunger behind the spark point. I have word from the company that it is more than likely you need a little stiffer spring than the one you were using. This one may not be any better, but you can try it and if not we will try and get you a stiffer spring. I am afraid that you are prejudiced in favor of the foreign cars which in comparison are far more expensive than the Winton car, and much more expensive to keep up. The 1.903 Winton car was never intended for racing and I told you this before you bought it. I trust this new spring will help matters for you; if not, please let me know.
“Very truly yours,
“A. R. Maltby, Mgr., per French.
“Many thanks for spring which has not yet arrived. I am in hopes it will solve the difficulty. If this ear would hold the speed it attains momentarily, it would answer my purpose entirely. I don’t want a racer at all. Races betiueen cars of 36 mile speed can Iwdly be termed ‘racing’ in the accepted sense of the word. I only waoü it to do all it is capable of,-welhAgain thanking you for your kind attention I am, Truly, C. M. Busch.
“July 20, 1903.
“Mr. C. M. Busch,
Atlantic City, N. J.
“Dear Sir: Your letter of the 18th received, and I beg to enclose a freight bill which we paid the Pennsylvania Railroad Company, and I also have another duplicate bill which only goes to show that the rate I name is correct. I asked the company for a duplicate bill. i:; s * When I sold you this ear I told you it would not do much more than 30 miles an hour the way it was geared, and that it was a touring car pure and simple; however, I did say with a smaller sprocket on the rear it would be capable of doing much faster work. We have had cars do as high as 45 miles an hour.” * * *

It thus appears that if the agent of the company ever warranted the machine to run forty-five miles an hour, by these letters the purchaser was fully advised that the machine he bought could not make that speed and that the company would not make such warranty good.

Notwithstanding this notice to him, the purchaser ten days later paid the balance of the purchase price and kept the machine six months longer without offering to return it.

By these letters he was called upon to elect whether he would rescind the contract and return the machine within a reasonable time, or keep the machine and sue for such damages as he might be able to prove.

We think the six months was too long for him to delay and that the proof clearly shows that the offer to return the machine was not made within a reasonable time. It follows that the verdict is against the weight of the evidence and that the motion for a new trial should have been granted.

Judgment reversed.


text:
    THE EXCEPTION UNDER THE BIGAMY STATUTE.
    Circuit Court of Cuyahoga County.
    Carrie M. Harms, Alias Carrie M. McLaughlin, v. State of Ohio.
    Decided, June 4, 1906.

      Bigamy — Criminal Intent — Burden of Proof.

    1. Where the first spouse of one accused of bigamy had been continually absent for five successive years next before the second marriage, without being known to be living within that time, the defendant is not guilty of bigamy.
    2. Where defendant relies upon the fact that the first spouse had been absent for more than five years next preceding her second marriage, without being known to be living, there is no burden upon her to show that she used due diligence to ascertain the whereabouts of her first husband.

      C. V. Robinson, for plaintiff in error.

      S. V. McMahon, contra.
   Winch, J.; Henry, J., and Laubie, J.,

concur.

The plaintiff in error ivas convicted of .bigamy and relies upon error in the charge of the trial judge to reverse the judgment.

Upon the trial of the case it was conceded that the first marriage was contracted on July 16, 1896, and the second on October 21, 1902, more than six years intervening, and it was shown that the first husband was still living, though he never lived with his wife. The accused offered evidence tending to bring her within the exception of the statute-(7018), which provides:

“This section does not extend to any person whose husband or wife has been continually absent for five successive years, next before such marriage without being known to such person to be living within that time.”.

Counsel for the accused requested the court to charge that if the jury found that the first husband of the accused had been continually absent from her for five successive years next before second marriage, without being known to her to he living within that time, they should bring in a verdict of hot guilty. This the court refused, but charged, in substance, that due diligence to ascertain the whereabouts of the first husband must be shown by the defendant before she can be said to come within the saving clause of the statute.

In so charging we think the court erred, and from the argument of the prosecuting attorney we are inclined to think he was lead into error by a misconception of the scope of. the opinion by Judge Jones, of the District Court of Cuyahoga County in the case of State v. Stark, reported in the tenth volume of the Weekly Law Bulletin, at page 16. The second paragraph of the syllabus of that ease reads as follows:

“It is competent for a defendant on trial to give evidence tending to show that at the time of the second marriage he in good faith believed and, after exercising due diligence, had reasonable ground for believing, that his first wife was either dead or divorced, and if he satisfies the jury of either of these things he is entitled to an acquittal.”

A careful reading of the facts of the case and of Judge Jones’ opinion shows that he was not considering the proviso or exception in the statute on bigamy, but confined himself to a refutation of the claim of the state that the doctrine of Massachusetts, set forth in the ease of Commonwealth v. Mast, 7 Metcalf, 472, obtains in Ohio. That case held that an honest belief on the part of the wife that the husband was dead, when she had made many inquiries about him, and when he had been gone several years, was no defense whatever to the charge of the bigamy. Judge Jones says:

“This case admits the general doctrine that where there is no criminal intent there can be no guilt; but it proceeds to nullify this doctrine by saying that where a statute has made it criminal to do any act under any particular circumstances, the party voluntarily doing this act is chargeable with.the criminal act of doing it.”

He then proceeds, by a consideration of the Ohio cases to show that in this state honest error of fact, where there is good faith and due care, is an excuse for what would otherwise be a criminal . act.

Now this, he says, is the general rule in Ohio, with regard to all crimes, and there is no exception with regard to bigamy. He makes no reference to the exception in the bigamy statute, nor could he, for Stank remarried within three years after his first wife left him. He gives the defense available at common law, to one accused of bigamy, and available though the second marriage may have been consummated within a few weeks or months after separation from the first consort.

The case of Squier v. State, 46 Ind., 459, cited by the prosecuting attorney, is like the Stank ease. Squier had been absent from his first wife only two years when he married again.

Having in mind this common law defense, what did the Legislature intend when it added the exception to the bigamy statute which has been quoted? If it simply intended to affirm the common law rule, why did the Legislature say anything about absence for “five successive years” and say nothing about good faith and due diligence in ascertaining the whereabouts of the absent first husband or wife?

The only answer to these questions is, that the Legislature intended to and did leave the common law defense available during the first five .years' separation, but established a milder rule, more favorable to the accused, available after five years separation.

We think that under this statute the accused, having shown that the first husband was continually absent from her for five successive years next before her second marriage, is only required to show further that, in fact, during said five years it was not known to her that her first husband was living during that time.

We realize that this makes it incumbent upon the accused to prove a negative, a very difficult thing to do, and for this reason the English cases simply require the accused to establish the separation for the statutory time, placing the burden upon the Crown of proving that the accused knew of the continuance of the marriage ties, but this rule we apprehend arises by reason of the English laws forbidding the accused to .testify in his own behalf. See the case of the Queen v. Curgerwen, L. R., 1 Cr. Cas. Res., 1.

Should the accused in this state testify that she did not know that her first husband was living during the five successive years next before her second marriage, it would seem that, to test her credibility, she might be cross-examined as to her means of knowledge and the efforts she had made to find her husband, and the jury would then have to determine whether she was telling the truth. The state might also be able to show, from other sources, that she in fact was aware of her first husband’s existence within the five years.

Complaint is also made that the court charged that the defendant must show that the first husband was the aggressor; in other words, that he left her, or that by his conduct she was justified in leaving him. There is warrant for this part of the charge in the words of the statute, for it reads; “whose husband * * ® has been continually absent.” If the wife left the husband without cause, she would be the absent one, not he. This view is sustained by the authorities.

Because by the charge the trial court placed a greater burden upon the accused than the statute provides, in the respect pointed out, the judgment is reversed and the cause remanded for a new trial. . . .


text:
    CLAIMS AGAINST ESTATES OF DECEDENTS.
    Circuit Court of Cuyahoga County.
    Anna Devereaux v. E. K. Hutchinson, Administrator.

    Decided, June 11, 1906.

      Executors and Administrators — Pleading—Waiver of Statute Prescribing Time for Commencement of Actions.

    Where a petition against an administrator does not show that the claim was» presented and disallowed, or that the necessary time has preceded the commencement of the action, and the administrator makes no objection either by demurrer or answer, but goes to trial upon an answer denying the validity of the claim, it is too late after several trials have been had and costs incurred, for him to raise that issue by demurring to an amended petition.
    Hart, Canfield & Croke, for plaintiff in error.

      W. P. Dunlap and T. K. Dissetie, contra.

       Affirmed without opinion, Devereaux v. Hutchinson. 78 Ohio State, 415.

   Winch, J.; Henry, J., and Laubie, J.,

concur.

April 12, 1904, the plaintiff, Anna Devereaux, brought her action before a justice of the peace to recover of defendant, as administrator of the estate of John Ferens, deceased, for personal services rendered the deceased during his last sickness and caring for his remains after his death and until his burial. After judgment the case was appealed to the Common Pleas Court of Cuyahoga County, by the filing of a transcript therein June 1, 1904, followed by the filing of a petition on June 18, 1904.

To this petition the defendant filed a motion to make more definite and certain, which was granted, and an amended petition filed January 28, 1905.

This amended petition alleged an indebtedness on an account thereto attached; that a copy of her account duly authenticated, was presented to the administrator May 19, 1902, and allowed by him; that more than two years had expired since the date of the bond pf the administrator, bnt that he had wholly failed, refused and neglected to pay, etc.

To this amended petition an answer was filed admitting 1he presentation of the claim, but denying all else. The defendant further pleaded that when said claim was presented, then and there he informed plaintiff that he disputed the claim and refused to pay it, and on September 30, 1902, indorsed a rejection of the claim upon it and advised plaintiff thereof.

The defendant further alleges that the plaintiff neglected to •sue on her claim within the time required by law and that no demand for payment was made within two years after the presentation and rejection of the claim.

A reply to this answer denies the new matter therein set forth, and says that the administrator having agreed to pay the claim, the plaintiff could not maintain an action thereon before she did sue.

It will be noticed that no issue was raised, either by demurrer or answer, that plaintiff had sued on an allowed claim before the expiration of the time limited by Section 6108, Revised Statutes, to-wit, eighteen months from the date of the administration bond, or the further time allowed by the court for the collection of the assets of the estate.

The case was submitted to a jury, which found for the plaintiff, but a motion for a new trial being filed, the same was granted and the case again submitted to the jury on the same pleadings, which resulted in another judgment for the plaintiff on May 23, 1905.

This second judgment was likewise set aside and on December 2, 1905, plaintiff was granted leave to file a second amended petition, which she did, alleging, in addition to her former allegations, that "there is now in the hands of the administrator about $2,000 and that all of the debts have been paid, except the claim of the plaintiff,” and further that at the expiration of two years within which the administrator was to file his final account, he had said time extended, but that the time within which the administrator was granted leave to file his final account had long since expired.

A demurrer was interposed to this second amended petition on the ground that it showed upon its face that suit was brought by plaintiff within the time limited by said Seection 6108, Revised Statutes, and this demurrer was sustained and judgment thereafter rendered against the plaintiff, from which judgment error is prosecuted to this court.

The claim being alleged to have been allowed by the administrator, it must be conceded that the case was originally brought too soon; but, by the time the second amended petition was filed, .the time limited in Section 6108, within which such a claim could not be sued upon, had expired. The plaintiff could then have dismissed his original ease without prejudice and immediately brought a new action, to which the statute would not apply. Such course would have compelled the plaintiff to pay the costs accrued before such dismissal, and it was conceded upon.the hearing that the one vital interest in this case is the cpiestion of costs. By the judgment of the common pleas court all the costs were charged against the plaintiff, and of this-he complains. Let us therefore inquire as to how costs were incurred in this action and the rules of law by which they should be assessed.

I read, in the, opinion of Judge Boynton in the case of Pepper v. Sidwell, 36 O. S., 454, beginning with the bottom of the page:

“That a petition against an administrator is 'defective that does not show that the claim was presented and disallowed, or that the, necessary time has preceded the commencement of the action, was held in Hammerle v. Kramer (12 O. S., 252); and it was also there held that the petition might be demurred to as not stating facts sufficient to constitute a cause of action against the administrator. In commenting of the question as one of practice, Scott, C. J., said: ‘As under the provisions of this section no action can be maintained against an administrator, by a creditor, till after, the lapse of eighteen months from the date of the bond, unless in certain specified eases, we think the'petition of the creditor should aver the necessary lapse of time. This is a condition essential generally, to the plaintiff’s right of action. It is also affirmative in its character, and if denied, the burden of proof is on the plaintiff, and we think, unless it is averred, the plaintiff does not show even a prima facie right to sue,’ This language had reference to the right of the administrator to raise the question of the plaintiff’s right to sue, by demurrer, where the petition did not show that the claim had been presented and rejected, or the lapse of the time necessary to the maintenance of the action.
“To the rule there laid down we fully adhere. In that ease the objection was timely taken and insisted upon, that the petition failed to show such facts as rendered the administrator liable to an action at the time the action was brought. The case, however, does not support the proposition that the administrator, who takes no objection, either by demurrer or answer, to the failure of plaintiff to bring the ease within the statute, may go to trial under a defense by which he contests the validity of the claim sued on, and in case of failure in such defense, may fall back and defeat a recovery on the ground that the claim was not presented for allowance, and consequently, that the action was prematurely brought. The provision of the statute exempting the administrator from liability to be sued, until certain preliminary steps are taken, or a certain period of time has elapsed, is a privilege that may be waived. The object of the statute is to afford the administrator an opportunity to allow all valid claims against the estate, and thereby avoid litigation and expense. It was designed to protect estates from unnecessary costs and vexation, where the administrator is satisfied that the claim is just and valid. Here the validity of the claim was in fact disputed, at the trial, and the liability of the defendant thereon denied, and the plaintiff subjected to large expense and trouble in resisting a defense made to its merits.
“To subject him to the expense and hazard of a trial, and then to dfeprive him of a judgment, notwithstanding the issues were determined in his favor, upon the ground that the petition is defective in the particular mentioned, would be manifestly unjust. The conduct of the administrator, in contesting the claim, shows that the estate lost nothing by the omission to present the claim for allowance. In our judgment, where the petition fails to show that disallowance of the claim, or that the time allowed for the collection of the assets of the estate elapsed before the commencement of the action, and the defendant takes no objection either by demurrer or answer, but goes to trial upon issues in which he contests the validity of the claim, it is too late to insist on the non-presentation of the claim, or the premature bringing of the action as a defense to the plaintiff’s right to recover.”

This reasoning seems to apply to the case before us. Here the validity of the claim was in fact disputed, the administrator, indeed, claiming in his answer that the claim had been rejected and the action brought too late, not too soon, and the plaintiff subjected to large expense and trouble in resisting a defense made to its merits, not once, but twice, for there were two jury trials before the defendant ever raised the proposition now contended for, by either answer or demurrer. He must then be deemed to have waived what Judge Boynton denominates his privilege to claim exemption from suit until the statutory time had elapsed.

This was the situation up to the time the last judgment was set aside and the second amended petition filed, to which- the demurrer was sustained. That demurrer is sustainable only upon the suggestion that the second amended petition speaks as of the commencement of the action, which is the ordinary rule, for when the last petition was filed the time had elapsed. To apply that rule would be manifestly unjust. We think it was then too late for the administrator, therefore, to insist on the premature bringing of the action. He had theretofore twice gone to trial upon issues in which he had contested the validity of the claim and put the plaintiff to large expense and much trouble.

The judgment is therefore reversed and the cause remanded for a new trial.


text:
    VACATION OF JUDGMENT.
    Circuit Court of Cuyahoga County.
    Minnie M. Folliette v. Anney M. Brett.
    Decided, June 11, 1906.

      'Action to Vacate Judgment After Term — When Retention of Attorney to Defend Action Snfficicnt Grounds for Vacating a Default Judgment.

    1. A petition to vacate a judgment after term may be filed as an independent action.
    2. The fact that defendant had retained an attorney to defend the action, had filed an answer, and been assured by her counsel that the case would not be reached for three years, after which she removed from the city, holding herself in readiness to return upon notice from her attorney, and that the attorney without notifying her withdrew from the ease and allowed it to go to trial without defense, constitutes sufficient grounds for vacating the judgment after term.

      A. W. Lamson, for plaintiff in error.

      John A. Thompson and TI. T). Messiah, contra.
   Winch, J.; Henry, J., and Laubie, J.,

concur.

This is a special proceeding, after judgment, instituted by the filing of a petition, under favor of Sections 5354 and 5358, Revised Statutes, to vacate the judgment obtained by Folliette against Brett, at a former term of the Common Pleas Court of Cuyahoga County, “for unavoidable casualty or misfortune, preventing the party from defending.”

The grounds for vacation of the judgment were tried, found to exist and the original case ordered tried to a jury as to the merits of the defense to the original action.

In this court three reasons are alleged why said order should be reversed:

First, because said petition to vacate was filed as an independent action, and on this proposition the language of the court on page 172 of the opinion in the case of Taylor v. Fitch, 12 O. S., 169, is referred to. That case -holds that such proceeding is not, of itself, a civil action, but a special proceeding in an action after judgment, and it is said that the proceedings to vacate the first judgment should be included in the record of the original case, so that there may not be two judgments, both based upon the same claim, should judgment again be rendered against the defendant.

There is nothing in the record and transcript before us to indicate that such possibility may occur in this ease, unless it may be that the common pleas court gave a new and different number to the special proceedings.

Its judgment, however, requires the original action to be retried, and the special proceedings are ended without possibility of further judgment therein.

Second, it is said that the petition fails to disclose good grounds for the vacation of the judgment complained of, and that an objection made to the introduction of any evidence under it should have been sustained.

It must be conceded that there are some inconsistent allegations in the petition and some that are open to the charge of equivocation, but we find that said petition, among other things, alleges that she retained counsel to defend the original action, filed answer therein, was told by her counsel that the case would not be reached for trial for three years, whereupon she left the city, being ready, willing and able to return at any time to defend and testify at the trial, and so advised her counsel. That she waited patiently to be notified by her attorney when to appear -and testify, but that he withdrew from the ease and allowed it to go to trial without defense, in her absence. She further alleges ‘ ‘ that she was wholly unapprised and unaware of the withdrawal of her said retained attorney” and that she was without negligence on her part.

We think these allegations, considered by themselves, sufficiently allege unavoidable casualty and misfortune, within'the purview of the statute. There was no motion or order to compel the petitioner to make her allegations more definite and certain, to separately state and number, or to elect upon which claims she would stand. We may therefore disregard the other allegations in her petition and consider it sufficient. The case of Taylor v. Fitch, above referred to, is some authority for this conclusion.

Third, it is claimed the bill of exceptions shows that the court improperly admitted evidence tending to establish the plaintiff's defense to the original action. As that defense was triable by a jury, and not by the court, it is said that this was error for which the order should be reversed.

We find no prejudice in the admission of this incompetent evidence. The court made no finding or judgment as to the defense submitted, but on the contrary specifically reserved that matter for the consideration of a jury. Iiis order is therefore conclusive that he gave no consideration to the evidence objected to. We can see no reason why the judge should not be advised as to the nature of the defense, as well as of the claims of the plaintiff. Indeed, the defense might have been of ah equitable nature, requiring the reformation of a written instrument, for instance, and completely extinguishing the plaintiff’s claim. In that event the court could have gone on and determined the merits of the defense, at once, and without a jury. That was not the ease here, but we suggest it as exhibiting the greater freedom with which the court can listen to evidence which would be incompetent and prejudicial to bring before a jury. The test of the prejudice of such evidence produced before a judge, is the order or judgment thereafter made by him.

We find no error in the order and it is affirmed.


author: ' Winch, J.; Henry, J., and Marvin, J.,

text:
    ACKNOWLEDGMENT OF WILLS.
    Circuit Court of Cuyahoga County.
    Maud Eggleston et al v. C. H. Gardner et al.
    Decided, February 23, 1907.

      Wills — Attestation.
    1. An acknowledgment by a testator that a paper already signed by her was her will, would include an acknowledgment of her signature to suck paper. .
    2. It is not necessary that an acknowledgment be made in the presence of both witnesses at the same time, or by any particular form of words.

      Blandin, Bice & Ginn and A. A. CiM'penter, for plaintiff in error.

      H. M: Nason, Carr, Stearns <& Chamberlain and Hoyt, Dustin & Kelley, contra.
   ' Winch, J.; Henry, J., and Marvin, J.,

concur.

This was an action to contest a will. The contestants relied upon lack of testamentary capacity in the testatrix and informality in the execution of the will.

The jury found for the will and the only question raised by these proceedings in error is whether the will was executed according to law.

We think that the evidence on this subject warranted the verdict of the jury, if the law on the subject was properly charged by the trial judge. Not only the witnesses to the will, but Judge Caldwell, its scrivener, the testatrix’s attorney, who was present when the will was signed, testified upon this subject.

It appears that the testatrix signed the will in the absence of the attesting witnesses. She then called them into the room, one at a time, and said to each of them: “ This is my will, I want you to sign it.” The will, with the signature of the testatrix upon it,' was unfolded and spread upon the table, when the witnesses signed their names, in the presence of the testatrix.

Plaintiffs in error claim that the will was not properly executed because the testatrix failed to acknowledge to the witnesses that the signature upon the will was her signature; in other words, their claim is that when attesting witnesses do not see the testatrix sign the will, the testatrix must acknowledge and declare to them not only that the instrument is her will, but that the signature upon it is her signature.

The charge of the court upon this branch of the case is as follows:

“Section 5916 provides: Every last will and testament except nuncupative wills hereinafter provided for, shall be in writing or may be handwritten or typewritten, and such will shall be signed at the end thereof by the party making the same, or by some other person in his presence, and by his express direction, and shall be attested and subscribed in the presence of such party, by two or more competent witnesses who saw the testator subscribe or heard him acknowledge the same.
“You will thus observe that the person making a will must be of sound mind and memory.
“And it must be attested and subscribed in the presence of such party by two or more competent witnesses who saw the testator subscribe or heard her acknowledge the same. If either of these requisites be lacking in the execution or attestation of an instrument produced as the last will and testament of a decedent, such instrument would not be either in law or in fact the will of such decedent. The claim of the plaintiffs in regard to the execution of said instrument is that the decedent did not sign the same in the presence of said wdtnesses, and that she did not acknowledge the same to be her will or acknowledge her signature thereto in the presence of both of said witnesses, or at least not in the presence of either of them.
“It is not necessary that a testator sign her name to a will in the presence of the witnesses, but where the witnesses do not see the testator subscribe the same, it is necessary to the due execution of the will that she acknowledge such will and her signature thereto to the witnesses; but it is not required that she do this in the presence of both witnesses together or at the same time, nor is it requisite that the witnesses sign their names in the presence of each other.
“It is not necessary that any particular form of words be used by the testator in acknowledging either her signature or will. It is sufficient if by words or otherwise she gave the witnesses to understand that the signature and the will were hers, and, if she had already signed her name to the writing, it-would be a sufficient acknowledgment both of her signature and of the writing as her will, if she stated to the witnesses,.in reference to said writing that the same was her will, or otherwise gave them to understand that the paper was her will. In other words, an acknowledgment by a testator that a paper already signed by her. was her will, would include an acknowledgment of her signature to such paper.
“If, from a fair consideration of all the facts and circumstances as shown by the evidence bearing on this question, offered by both parties, including the signature to the instrument and the statement thereon signed, by the subscribing witnesses, Mrs. O’Neal’s and 'Mrs. Wescott’s and Judge Caldwell’s‘testimony being included, you believe it more probable that Mrs. Prosser neither signed said writing in the presence of the subscribing witnesses nor acknowledged the same with her signature thereto in the presence of said witnesses, then the weight of the evidence would preponderate in favor of the claim that she did not so sign or acknowledge such instrument.
'' If you find from the prepondéranee of the testimony that the two witnesses whose names are attached to the said writing did not see Mrs. Prosser sign the same; and if you further find that she did not in their presence either acknowledge said writing as her writing with her signature thereto, or acknowledge said writing with her signature affixed thereto as being her will, then your verdict should be that the writing in question is not the last will and testament of said decedent.”

The jury returned for further instructions, at which time the court said:

“If Mrs. Prosser, in the presence of the witnesses, acknowledged that the paper already signed by her was her will, this would include an acknowledgment of her signature as well as of the instrument as her will.
“It is not necessary that an acknowledgment be made in the presence of both witnesses at the same time, or by any particular form of words. It would be sufficient, if by words or otherwise, she gave each of the witnesses, either together or separately to understand that the will with her signature thereto was hers.”

The court then again read Section 5916 of the statutes.

. The- leading case cited by counsel for plaintiffs ■ in error in behalf of this contention' thát thé eharge is erroneous, is Chaffee v. Baptist Missionary Convention, 10 Paige’s Chancery Reports (N. Y.), 85, part of the syllabus of which reads as follows:

‘ ‘ The subscription of the will must be made by the testator in the presence of each of the attesting witnesses, or it must be acknowledged by him to have been so made, to each of the attesting witnesses.
“Where the testator, at the time of the execution of his will in the presence of the attesting witnesses placed his finger on his name subscribed at the end of the will, and acknowledged that it was his last will and testament, but there was no evidence that he subscribed it in the presence of attesting witnesses, or that he acknowledged in their presence that such subscription was made by him or by his direction or in his presence, held that the will was not duly executed.”

Counsel for defendants in error, citing the cases in Ohio on this subject, Raudebaugh v. Shelley, 6 O. S., 307; Haynes v. Haynes, 33 O. S., 598, and Keyl v. Feuchter, 56 O. S., 424, and claiming that no case in Ohio has determined the precise point here made, relies npon the case of Baskin v. Baskin, 36 N. Y., 416, which is later than the Chaffee case in that state, and has been followed subsequently in many cases in New York state. The syllabus of the Baskin case is as follows:

“The subscription of the testator and the publication of the instrument are independent facts, each of which is essential to the complete execution of a will.
“If the signature is written by another, and concealed from ■the view of the testator and the witnesses, the mere publication of the instrument as his will can not be deemed an acknowledgment that the unseen subscription was made by his direction.
“When, however, the testator produces a paper bearing his personal signature, requests the witnesses to attest it, and declares it to his last will and testament, he thereby acknowledged the subscription, within the meaning of the statute.”

The distinction between these two New York cases was clearly pointed out by the Supreme Court Commission of this state in the Haynes ease, 33 O. S., 598, where Johnson, Chief Judge, on page 611, says:

‘1 Counsel claim that where the witnesses did not see the testator sign, then they must have heard him acknowledge all the facts requisite to such signing, and if the will was signed for Mm, that the aclmowledgment must embrace the fact that he expressly authorized another person to sign for him and that a general aclmowledgment that such signature was his, and that he acknowledged the paper so signed as his will, is not sufficient.
“This view was rejected by the court below, and the rule as laid down in Raudebaugh v. Shelley et al, 6 Ohio St., 307, adopted.
“That was the case of a testator signing himself in the absence of a witness, while this is a case of signing by another. It was there Reid that the testator need not in words expressly acknowledge such subscription, if by signs, motions, conduct, or attending circumstances, he gave the attesting witnesses to understand that the signature and will were his.
“To the same effect is Baskin v. Baskin, 36 N. Y., 416 (Conn.), 10 Paige, 85, much relied on in this ease. That was the ease, of a testatrix who could not write. The will, with her name signed to it, was produced by her to the witnesses, and putting her hand on the signature she said: ‘I acknowledge this to be my last will and testament; ’ but she did not admit in the presence of the witnesses that she had subscribed her name to the will, or that it was her signature, or that it had been subscribed thereto by any other person by her direction, and there was no other evidence that she did so subscribe thereto or acknowledge the signature to the will, and it was held insufficient, because merely calling the paper her will was not an acknowledgment of the signature to the will.
“The distinction between these eases is, that in Raudebaugh v. Shelley and Baskin v. Baskin, the personal signature had been made in the absence of the witnesses, an acknowledgment of the signature as Ms, to the witnesses, and of the paper as his will, is sufficient; while in the Chaffee case, if signed by another, in the absence of the witnesses, the mere publication of the will as his, without any acknowledgment of the signature, can not be deemed an acknowledgment' of the unseen subscription made by his direction. ”

"VYe conclude that the case before us is -within the rule laid down in the Baskin ease, and that there was no error in the charge given.

Complaint is made, however, because the trial judge refused to give plaintiffs’ fourth request to charge, which reads as follows:

‘1 The law provides that upon the trial of an action for contest of a will, the order of the probate court admitting such will to probate shall be prima facie evidence of the due attestation, execution and validity of the will.
"The effect of this provision of the law is to cast upon the parties contesting the will the burden of showing by other evidence that the writing is not the last will of the deceased. This burden is sustained if you find from all the other evidence in the case, aside from the order of probate, that the writing is not the last will of the deceased. It is your duty in determining this question to weigh all the evidence tending to show that it is not the last will of the deceased against the evidence tending to show that it is the last will of the deceased; and if, after so weighing the evidence, you find that the preponderance is against the validity of the will, it is your duty to say so by your verdict, and in so doing, you should not weigh the presumption of the due execution, attestation and validity -of the will raised by the order of probate against actual evidence. You should weigh evidence against evidence, and if so weighing it the preponderance is against the validity of the will, this is sufficient to overcome the prima facie case in favor of the will made by the order admitting the same to probate.”

The trial judge properly refused to give this requested charge. Mears v. Mears, 15 O. S., 90, 101, 102; Hutson v. Hartley, 72 O. S., 262, 269.

Judgment affirmed.


text:
    NO WARRANT FOR REFUSING TENDER.
    Circuit Court of Cuyahoga County.
    Louis Rich et al v. Jacob Maskovitz.
    Decided, March 4, 1907.

      Sales — When Buyer May Not Reject Article Tendered Because of Quality,

    In the- sale of articles not intended for a particular designated purpose, hut only for re-sale, the presence in or among the, articles tendered of a trifling amount of foreign or defective matter will not warrant the buyer in refusing the tender.

      E. C. Schawan for plaintiffs in error.

      Kline ■<& Hwrris, contra.
   Winch, J.; Henry, J., and Marvin, J.,

concur.

Maskovitz sued Rich and Fertel for damages for breach of contract to receive and pay for two carloads of “scrap,” to consist of wrought steel and about twenty-five per cent, of malleable scrap, sáme to be free from stove plate, sheet iron and cinders. Rich and Fertel justified on the ground that the scrap tendered contained stove plate, sheet iron and cinders.

The plaintiff’s own evidence tended to show that in the two carloads of scrap there was about one per cent, of stove plate, sheet iron and cinders. The defendants testified to the presence of much more of said objectionable materials.

The court charged the jury as follows:

“If you find that the scrap tendered by the plaintiff under this contract contained such a small quantity of the excluded kinds as to be trifling in amount as compared with the whole, such a quantity as to be fairly immaterial, then the defendants would not be justified in refusing to receive it and your verdict will be for the plaintiff. But if you find the quantity of stove plate and sheet iron contained in the cars tendered was a material part of the whole, such a quantity as to be fairly material, then the plaintiff could not recover.
‘ ‘ So you will have to ascertain the quantity of this stove plate, sheet'iron and cinders, if any, that was in these cars, whether-it was such a small amount as to be immaterial or whether it was of sufficient amount to be material, considering the terms of the contract and the quantity tendered.”

The jury found for the plaintiff, deducting, however, the damages on one per cent, of the two carloads, by their computation showing that they were of the opinion that the scrap tendered was ninety-nine per cent, of it according to the contract.

We think the charge was warranted by the eases of Cullen v. Bimm, 37 O. S., 236, and Kane v. Stone Co., 39 O. S., 1.

In the former case the second paragraph of the syllabus reads as follows:

“In an action for refusing to accept a lot of ice containing several hundred thousand cubic feet, which by the terms of the contract of sale was to be merchantable,'the court charged the jury that the plaintiff could not recover unless it appeared that the ice as a lot was of merchantable quality, ‘fit for the ordinary uses to which ice is put, ’ and such as would ‘ fairly pass the market.’ Held: That in refusing to charge that all, that is, every part of the ice, should be merchantable, the court did not err.”

On page 240 of the opinion Judge Okey uses the following homely illustration:

“The rule upon the subject may.be illustrated by a familiar example. Thus if A sells to B six sound apples, the tender of six apples, one of which is to any extent unsound, may not be a compliance with the contract-/but where the sale is of a barrel of sound apples, the tender of a barrel of apples might be a compliance with the contract, although one apple in the barrel was to some extent unsound. Large lots of ice entirely free from impurities perhaps can not be found.”

The latter' ease involved a building contract, but affirmed the rule laid down, in the ice case.

We find the following on page 11 of the opinion:

“Moreover, the stipulation that the stone should be ‘free from iron and all spots and discoloration, ’ must be construed in view of the uses to which the material was to appropriated. Perhaps no lot of stone of the kind referred to is so perfect as to be wholly free from iron and spots. The rule in contracts of this sort, is stated in Cullen v. Bimm, 37 Ohio St., 236. Besides, the jury deducted $55 from the sum for which a verdict should have been rendered in ease of strict performance, and we may fairly say that this was because of iron or spots in the stone. ’ ’

In this contract we find the words “free from,” the same as in the case before us. We conclude that in the sale of articles not intended for a particular designated purpose, but only for resale, as in this instance, the presence in or among the articles tendered of a trifling amount of foreign or defective matter will not warrant the buyer in refusing the tender. Nor may the buyer reject the tender on the appearance of it to him, as suggested by plaintiff in error; otherwise all the jury would have to find would be the impression the tender made on the buyer, and not the real merits of it. However, there was no request to charge, and so no error can be predicated upon this proposition.

Exception was taken on the hearing to the refusal of the court to permit a witness to testify as to his estimate of the amount of stove plate, sheet iron and cinders in the two ears, based upon what he saw on the top and sides of the cars.

There are three reasons why there was no error in this ruling:

First. The jury could estimate as well as the witness.

Second. There was no offer to prove, after the objection was sustained; and

Third. The witness was subsequently permitted to give his estimate.

We find no prejudicial error in the record, and as there was an irreconcilable conflict in the evidence, we must accept the conclusion of the jury upon the facts of the ease.

The charge failed to instruct the jury to deduct the amount of objectionable matter from the total weight of the two carloads, and figure the damages on the balance alone, but as the jury did this without instructions, the judgment upon its verdict is affirmed.


author: Winch, J.; Henry, J:, and Marvin, J.,

text:
    SERVICES TO BE PAID FOR. IN PART BY CORPORATION AND IN PART BY STOCKHOLDERS.
    Circuit Court of Cuyahoga County.
    E. W. Robinson v. H. E. Willard.

    Decided, March 11, 1907.

      Statute of Frauds- — When Recovery May hé Had Upon a Quantum Meruit. '

    Where under a void" parol contract-,'for services with a. corporation and with individual stockholders of the corporation, by which-the cor- . poration .agreed to .pay a certain sum and the stockholders other sums, plaintiff enters into 'the.employment of the corporation and performs services, he can recover 'upon a quantum meruit as against the corporation but not as against the stockholders. •

       Affirmed without opinion, Robinson v. Willard, 78 Ohio State, 441,

   Winch, J.; Henry, J:, and Marvin, J.,

concur...

Plaintiff was in the employ of :the United States :Coal Company, as the general superintendent of its .mines under a five years' parol contract with it and was to receive $8,500 per year for his service, of which said company was to pay. $4,000 in cash, and the defendants, who were the stockholders and officers of said company, were to pay in stock of said corporation tó the extent 'of' three thousand dollars, at par, it being ag’réed that' said stock had a value of $150 per share, making $4,500’. This agreement with said individuals, stockholders and officers, was likewise in parol.-

' The plaintiff entered'upon the discharge of his duties under said arrangement but. was discharged at the end- of ’eight months.

H'e received his cash compensation from the'company for said eight months at the rate agreed upon, but the individuals mentioned refused to give him a pro rate share of the stock mentioned, and so he brought this suit against them.

At the close of his evidence the trial judge dismissed his action, and now he is in this court for a review of that judgment.

Tbe ease seems simple. The agreements of the .corporation and of the individuals holding stock were void because of the statute of frauds.

Although the express contract between the parties was void, the plaintiff -having given his time and services to the corporation, the law implies a contract between him and it that he should be paid therefor upon a quantum meruit. No such implied contract arises between the plaintiff and the defendant stockholders.

To hold that the corporation as a separate entity is a mere fiction which can not be used to shield stockholders because they are all the stockholders, and as such entitled to all the benefits flowing from the plaintiff’s services, would be to nullify the corporation statutes of the state and to remove all inducement to the organization of corporations. This does not mean that the plaintiff has no remedy against the corporation, but it does mean that plaintiff has no right of action against the stockholders. This would be conceded, if the defendants were not such stockholders. The law, and not a fiction, is the shield' of the defendants.

Judgment affirmed.