author: HENRY, J.

text:
    INSANE PERSONS — INSURANCE
    [Cuyahoga (8th) Circuit Court,
    November 26, 1906.]
    Marvin, Winch and Henry, JJ.
    Laura L. Jordan v. Mutual Life Ins. Co. et al.
    Insanity of Degenerate with Paranoidal Delusions Evidenced by Egor mania and Megalomania Established by Alienists, Defeating Change of Beneficiaries of Insurance Policy.
    An insane degenerate with paranoidal tendencies and delusions which take the form of egomania and megalomania, may continue in the pursuit of his daily business and exercise such self-restrain that those associated with him will not be aware of his condition, so that, when two alienists after an exhaustive examination unqualifiedly declare a person to have been suffering with that form of insanity, their testimony will be of more weight than that of numerous associates who came In contact with him in a business way.
    Appeal.
   HENRY, J.

The action as originally begun was an action to recover the amount of an insurance policy issued by the Mutual Life Ins. Co., the defendant, to Frank Jordan, plaintiff being the widow of said Frank Jordan. And a part of the relief asked for by the prayer of the petition is, that a certain change of the beneficiaries that had been sought to be made by Frank Jordan in his lifetime, with the concurrence of the insurance company, should be set aside as null and void for one or more of three reasons.

First, that the plaintiff had paid some of the premiums' upon the policy, upon the faith of an agreement that the policy should be taken out in her favor.

Second, that Frank Jordan, the insured, was at the time the change of beneficiaries was made, of unsound mind, and that the person who was made beneficiary under the change, namely, his sister, Maude A. Wood, fraudulently induced him to make such change not, however, by actual fraud, but by construction of law.

Third, that the policy’s terms forbid an assignment without the consent of the beneficiary named therein.

As regards the first and third of these reasons, we may say without discussing them that we do not found our judgment upon them. There is no evidence tending to show that the state of facts claimed with reference to either of these grounds exists, and our construction of the policy and the provisions therein contained with reference to the change of beneficiary is not the construction which the plaintiff here seeks us to have put upon it.

With regard, however, to the second ground, namely, that Frank Jordan, j;he insured, was of unsound mind at the time the alleged change of beneficiary was made, and that, therefore, he was incapable of making a valid change, we have submitted to us the testimony of a great number of witnesses, pro and con.

Among the plaintiff’s witnesses are two physicians of this city, experts, Dr. Aldrich and Dr. Upson, both of whom, upon an exhaustive examination by hypothetical questions and with respect to the results of an examination which they made of documentary matter of great variety, which was, submitted to them, and the handwriting of Frank Jordan, testified unqualifiedly that he was of unsound mind; that he was an insane degenerate with paranoidal tendencies and delusions which took the form of egomania and megalomania and delusions of persecution imagined to have been suffered by him in the domestic affairs and as shown by other evidence resulting in an insane jealousy of his wife and extreme ill-treatment of her on several occasions in consequence of the delusions referred to. Their examination was exhaustive and their testimony in that behalf was, as I say, unqualified. If we say he was of sound mind, we must do so in the face of the positive testimony of these physicians. Moreover, a physician, one of the defendant’s experts, Dr. Straight, as a witness, undertook to testify from his acquaintance with Mr. Jordan in his lifetime, that, although' he was a man of some peculiarities of character and conduct, yet he was of perfectly sound mind. On cross-examination, he said that if Frank Jordan wrote the writings that were submitted to him upon the stand, he should be of the opinion that Jordan was insane.

A large number of business men of this community were examined as witnesses for the defendant, having been business associates of Mr. Jordon, who, by the way, was an insurance agent. He had a wide circle of acquaintances, was a member of the chamber of commerce and of a committee which was appointed a few years ago to get new members, and his work on that committee was very successful. A number of business acquaintances in this city, of high standing, who saw him from time to time in connection with his work on the chamber of commerce committee, or his professional duties and otherwise, testified on behalf of the defendant that in their judgment he was of sound mind. Several of them were quite emphatic that he was of sound mind, saying that the suspicion never entered their minds that he was insane.

Here there was a sharp conflict.

Referring again to the testimony of plaintiff’s experts. Their testimony was to the effect that a person suffering from this form of insanity may continue in the discharge of his business and the duties thereof for a long period of time without his insanity necessarily interfering with his success therein. And it is possible for a man suffering from this form of mental trouble to continue for a period of time without his mental trouble being particularly noticeable, or even noticeable at all, to those who meet him from day to day while in the discharge of his duties. And it is true to a degree of such insane persons, as it is indeed of all persons, that they are capable of exercising some self-restraint in respect to making an exhibition or expression of their peculiar delusions, and, hence, it is not at all surprising, according to the testimony of these expert physicians, that the business associates of a man suffering under the form of insanity that the experts say Frank Jordan suffered from, should fail to observe that he was thus afflicted.

Without entering into a resume of the great variety of instances that were adduced in the testimony on the trial, which, for length, in this court was unprecedented, it is sufficient to say that the documentary matter which was presented to the experts and presented in evidence to us, we have examined carefully. It consists, in the main, of books owned by Frank Jordan which he had marked by drawing lines around passages that struck him, on the margins of the pages, and by writings upon the flyleaves.

The markings of the books was of itself very erratic, to say the least. He seemed to have a passion for marking his books, and some of them are marked page after page by pencil marks that disfigure the books, and marked without reference to anything in the printed page. But some of the pages are very significant, being with clear reference to the contents and meaning of the printed words upon the page. And the things that are written upon the fly-leaves of some of these books, so far as they are intelligible at all, and particularly of the Bible, would tend to show, according to the testimony of Dr. Straight, a hypocritical and immoral life; yet Dr. Straight testified that Jordan, if he went home and read the Bible for hours and days at a time and marked passages such as were marked, would be insane.

We have examined this bill which is marked at great length and these books, some of which are Meyer’s Christian Living, Long’s Thoughts of Marcus Aurelius, Clerk’s Instructions to Christian Converts, Jordan’s Kingship of Self-Control, etc., and if these experts, witnesses, have correctly detailed the indicia or symptoms of this species of insanity to which they testify, and if there is such a' species of insanity as we have no doubt there is, we think from our examination that we have made of these documents, in the light of the instruction that we have received from these experts, on the subject of insanity, that their deductions from these writings and these books and the markings thereon, are correct.

We can not come to any other conclusion than that the man who made these entries in these books, and made these peculiar marks, was a man of unsound mind. And, without further discussion of the evidence and because our conclusions of fact require the judgment we render, we simply say that the judgment will take the form of a reformation or annullment of the change of beneficiary that was made by Frank Jordan, and a judgment for the plaintiff against the insurance company for the amount of the policy.

I may say the insurance company is not contesting this policy ; they have paid the proceeds into the hands of the Society for Savings, which is acting as receiver or trustee, by agreement of the parties.

Winch and Marvin, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    TRIAL
    [Cuyahoga (8th) Circuit Court,
    November 24, 1905.]
    Marvin, Winch and Henry, JJ.
    Cady-Ivison Shoe Co. v. A. Chicowicz.
    Court may Resubmit Case to Jury When Verdict is Plainly Mistake.
    When a jury after returning a verdict in a replevin case were discharged, and certain members of the jury having inquired of the court as to the effect of their verdict and upon being informed that it was in favor of the defendant, protested that that was not their intention, it was not error for the court to reassemble the jury and after ascertaining that all of them were mistaken as to the effect of their verdict, resubmit the case to them after further instructions.

      Kline, Tolies & Goff, for plaintiff in error.

      Henry Du Laurence, for defendant in error.
   HENRY, J.

This was a replevin case commenced before John Brown, J. P., defendant in error, a retail shoe dealer, who had bought, partly on credit, a bill of goods of plaintiff in error, wholesale shoe dealers. The former having failed to pay punctually therefor, his entire stock was replevied by the company, including not only those that remained of the shoes for which he had not paid, but also others bought of the same and other wholesale dealers. All that had not been bought of plaintiff in error were subsequently returned. The rest were kept.

The cause was appealed to the common pleas court, and, on the trial there, the jury returned a verdict evincing on its face a misunderstanding, of the peculiar form of verdict returnable in such cases. While court and counsel were discussing whether the verdict might not be rectified by treating part of it as surplusage, the jury were excused and told to report to the jury room for duty. Part of them left the room and part crowded about the court’s desk, inquiring about the effect of their verdict and whether it imported a finding for plaintiff or defendant. Being told by the cotirt that it was finding against Chicowiez, they protested that it was not their verdict. Thereupon the court called the whole jury back, and having charged them further, sent them out to deliberate once more. They later brought in a verdict against the plaintiff in error, upon which judgment was rendered.

The facts that transpired after the first verdict was rendered, are brought into the record largely by the affidavits of the jurymen themselves, filed in resistance to the motion for a new trial, and incorporated in a bill of exceptions. It is complained that the testimony of jurors can not be heard to impeach their own verdict. Such, however, is manifestly not the purpose or effect of this evidence. The first verdict is self-impeached, and the door is thus opened to let in the testimony of the jurors themselves in confirmation of their misunderstanding. Farrer v. State, 2 Ohio St. 54.

It is objected further that the court was without power, having once discharged the jury, to reconvene them; and that the jury were without power having once rendered a verdict and separated, to withdraw the same and render another. Sutliff v. Gilbert, 8 Ohio, 405, cited by plaintiff in error in support of this contention, appears, however, when examined, to afford abundant justification for the action of the court and jury under such circumstances of this case.

It is objected further that the verdict and judgment as finally rendered, are for a sum in excess of the possible liability of the plaintiff in error in view of the amount of Chicowiez’s unpaid indebtedness. This contention overlooks 'the fact that other goods were taken besides those for which Chicowiez was indebted.

We ’find no error in the record and the judgment is affirmed.

Marvin and Winch, JJ., concur.


author: MARVIN, J.

text:
    PARTNERSHIP
    [Cuyahoga (8th) Circuit Court,
    November 24, 1905.]
    Marvin, Winch and Henry, JJ.
    Emily Schneider, Exrx. v. Gustave Stern et al.
    Notice of Dissolution of Partnership with Fictitious Name not Necessary to Protect Retiring Partner.
    When a partnership name does not disclose the names of the individuals who constitute the firm, no general notice of dissolution is necessary to protect a retiring partner from the claim of one who .becomes a creditor after the dissolution and who had no knowledge that the retiring partner had been a member' of the firm.
    Error.

      W. (}. Rogers, for plaintiff in error..
    P. G. Kassulker and W. C. Rogers, for defendants in error.
   MARVIN, J.

For some time prior to the month of August, 1897, there was a copartnership doing business in this city, the members of which were John Lindy, J. G. Waite and W. F. Schneider, the latter being now deceased and being the testator under whose will the plaintiff in error is acting. The firm name of this copartnership was “Cleveland Book Bindery.” A proper certificate of the name of the members of this copartnership was filed with the clerk of the court of common pleas on April 9, 1895. No change in said certificate has been made, nor has any certificate been filed with such clerk showing any change in the personnel of said firm.

On August, 1897, said W. F. Schneider retired from said firm and was never thereafter a member of it, but the remaining partners continued in the business under the same firm name, or possibly under the name of “Cleveland Book Bindery Co.” While said W. F. Schneider was a member of said copartnership, Gustave Stern was never a dealer with said firm.

On January 12, 1896, there was executed a promissory note, reading.

“Cleveland, Ohio, Jan. 12, 1898.
“$74.00.
“Ninety days after date we promise to pay to the order of Consolidated Paper Co. seventy-four dollars.
“At 198 Seneca St. Value received.
“Cleveland Book Bindery Co.,
“John Lind, Mgr.”

Said note is endorsed: “John Lindy. Consolidated Paper Co. by F. C. Kauffman.”

This note, by due course of business and before maturity, became the property of the said Gustave Stern.

On March 29, 1899, there was executed and delivered to the said Gustave Stern a promissory note reading:

“Cleveland, Ohio, March 29, 1898.-
“$75.00.
“Thirty days after date we promise to pay to the order of Gustave Stern seventy-five dollars, at 198 Seneca St. Valúe received.
‘ ‘ Cleveland Book Bindery Co.,
“John Lind, Mgr.”

On this note the following words are endorsed: “Consolidated Paper Co. John Lindy.”

Neither of these notes being paid and both being the property of said Gustave Stern at maturity, the said Stern brought suit upon them, first before a justice of the peace, and an appeal was then taken to the court of common pleas from the judgment of said justice, and thereupon said Stern filed his petition in said court upon said notes, making defendants in said suit John Lindy, J. G. Waite and W. F. Schneider, partners as “Cleveland Book Bindery” and “Consolidated Paper Co.” While the ease was pending in the court of common pleas said W. F. Schneider died, and the action was revived against the present plaintiff in error, as executrix of the will of said decedent. The first trial of the case resulted in a verdict and judgment for plaintiff, and, on motion, such judgment was set aside and a new trial granted. The second trial resulted as the first had done, in a verdict and judgment against the defendants. The plaintiff in error filed a motion for new trial, which was overruled, and she comes into this court by proper proceedings in error, seeking to reverse said judgment.

A defense made for Schneider was that he was not a member of the firm when either of the notes sued upon was executed. This fact was established beyond controversy. But it is urged by plaintiff below that this did not relieve him from liability upon these obligations, unless he had given proper notice of his withdrawal. This notice it was claimed Schneider had given, and the real question, so far as this matter of notice is involved, is as to what notice he was bound to give to relieve himself from liability to Stern.

If Stern had been a customer of the firm when Schneider was a member of it, and if, after his retirement, the remaining partners continued to do business under the same firm name, then Stern would have been entitled to actual notice of the change, unless in some other way the knowledge had come to him of the retirement of Schneider. Perhaps it is not profitable to discuss the question of whether the business, in this case, was continued under the old name, because it seemed to be concluded on the hearing that it was, although, as has already been pointed out, the first of the two notes sued upon was not signed by the name shown in the certificate of partnership, the latter being ‘ ‘ Cleveland Book Bindery, ’ ’ while the name signed to the note is “Cleveland Book Bindery Co.” The other note, however, is signed by the name shown in the partnership certificate.

The court in its charge to the jury said, on the question of notice:

“I say to you, gentlemen of the jury, as matter of law, that the plaintiff was not such a dealer, within the contemplation of the law, with the partnership as would entitle them to actual notice. ’ ’

It has already been said, as a fact, in this opinion, that Stern was not a dealer with the firm while Schneider was a member of it. Attention was not called to the evidence on that point, but an examination of the evidence clearly shows that the court was right in saying to the jury what has been quoted from the charge on that point.

The court immediately followed what has been quoted with these words:

“But the plaintiff claims that even though he had had no dealings previous to these notes, he was entitled to general notice, and in this respect I say to you that under the circumstances the plaintiff would be entitled to notice, but not to actual notice; fair notice in a public or notorious manner is sufficient, * * * and it is for you to say whether the defendant Schneider gave fair notice of his withdrawal from the partnership. If he did, then he would not be liable. If he failed to exercise reasonable diligence by adopting a fair and usual method to give such general notice, one that would be reasonably likely to give general public notice, then he can not escape liability even though he had withdrawn from the partnership prior to the time of the giving of these notes. ’ ’

We hold that this language in the charge, given as it is without any qualification as to whether Stern had ever known that Schneider was a partner in the firm, was erroneous. If there had been added the qualification that this general notice must be given to relieve from liability to one who had known of Schneider’s being a partner in the firm, it would have been a correct statement of the law.

In Meacham, Law of Partnership, par. 263, it is said:

“Of the persons who have not had dealings with the firm there are likewise two classes, those who knew of the partnership but had not dealt with it, and those who did not know of it prior to its dissolution. As to the latter class, it is said that no notice at all is necessary, upon the ground that, as they did not learn of the existence of the partnership until it had actually been dissolved, they could have no reason for holding it liable; and this is doubtless correct where no element of estoppel 'is involved. ’ ’

It must be borne in mind that there was nothing in the name of this firm indicating who were partners in it, so there was no holding out by the firm name that any particular person was a partner.

Instructive notes on this question of notice are found in Prentiss v. Sinclair, 26 Am. Dec. 290-296 [5 Vt. 149], The following quotations are from these notes:

“A person who did not know of the existence of a partnership can not, after it has been dissolved, say that he relied on its continuing to exist, or that he was induced by that unknown existence to give credit.
“There seems to be a distinction made in the case of new customers, between those who had actual knowledge of the existence of a partnership and of its membership, and those who had no such information; to protect the former the general notice by advertisement appears especially to apply, while as to the latter the giving of any notice would seem to be unnecessary.”

A great number of errors are claimed by the plaintiff in error. Each has been carefully considered, but none of them seem sufficient to justify a reversal of the judgment, except the language of the charge hereinbefore criticized.

For error in the charge as pointed out, the judgment is reversed and the case remanded.

Winch and Henry, JJ., concur.


text:
    CHARGE TO JURY — STREET RAILWAYS — TRIAL
    [Cuyahoga (8th) Circuit Court,
    January 21, 1907.]
    Winch, Marvin and Henry, JJ.
    J. F. Griese v. Cleveland Electric Ry.
    1. Indefinite and Uncertain Terms as to Speed of Street Car.
    It is not error to strike out answers which are in terms so general as to be indefinite and uncertain, as that a car was moving “fast” or “very fast” or “at an awful rate of speed.”
    2. Competent Witness as to Speed of Street Car.
    A witness who has been accustomed to riding upon street cars and whose observatoins and experience has been such as to make his judgment reliable, may testify as to the rate of speed a car upon which he was riding was traveling.
    3. Negligence in Crossing Street Tracks.
    One about to cross a street car track, is bound to use his senses to ascertain whether a car is about to cross or is approaching a crossing, and if he fails to see or hear anything, when a careful and prudent man by using his eyes, and ears with ordinary care would have discovered a car in so close proximity to the crossing that he could not safely drive across, he is guilty of negligence and can not recover for his injuries.
    4. Violation of Ordinance by Street Car Operation.
    Violation of a city ordinance in the operation of its street cars is not per se negligence which makes the company liable to one injured at a street crossing.
    5. Not Error to Fail to Amplify Instructions not Requested.
    When what was said by the court to the jury in the charge was clearly the law, if the plaintiff desired the court to charge further on the subject in question, a request for such further charge should have been made, and none having been made, the court did not err in failing to give any other proposition on the subject, whether such other proposition would have been warranted or not.
    Error.
   MARVIN, J.

The parties here are as they were in the court below; the result in that court having been a verdict and judgment for the defendant.

The plaintiff filed his petition seeking damages for injury to his person and injury to his horse and buggy which he claims to have received on September 14, 1901, by reason of a collision between the carriage in which he was riding and the horse drawing such carriage on the one part, and the car of the defendant on the other. This collision occurred at the corner of Wade Park avenue and Giddings avenue, in the city of Cleveland. The plaintiff was driving his horse, attached to said buggy in which he was riding, to the north on Giddings avenue; the defendant’s car was traveling to the west on the tracks of the company on Wade Park avenue. The petition alleges that the collision occurred and the injury was sustained without fault on the part of the plaintiff, and wholly by reason of the negligence of the defendant in two particulars, to-wit: that the car of the defendant was being moved at an unlawful rate of speed and that no gong was sounded or other alarm given by the defendant when approaching the crossing of these two streets. The defendant answered with a general denial, and with an allegation that if the plaintiff was injured, his own negligence contributed thereto; but there was no contention that the two avenues did not cross each other; that the car of the defendant was moving to the west, and that the plaintiff was in his carriage driving his horse to the north, and that a collision occurred. The real' contention was that there was no negligence on the part of the defendant which caused the collision, and in any event there was negligence on the part of the plaintiff, which contributed to this collision.

On the part of the plaintiff there was introduced in evidence an ordinance of the city of Cleveland which provided that the rate of speed of street cars should not exceed twelve miles an hour, and it was admitted on the hearing that there was a valid ordinance of the city of Cleveland in force at the time which required that “all street ears shall be provided with a signal bell or gong, said bell or gong shall be sounded at least one hundred feet distant from all street intersections,' and shall be continuously sounded while passing the same.”

The evidence as to whether the speed at which the car was going was greater than 12 miles an hour was conflicting, as was also the evidence as to whether any gong or bell was sounded, or other alarm given of the approach of the car to the crossing. For the purpose of establishing the proposition that the car was moving at a.higher rate of speed than that allowed by the ordinance, the plaintiff introduced a witness who testified that the car was moving “at an awful rate of speed.’’ Another witness testified that the car was moving “fast,” and another that it was moving “very fast.”

The court on motion of the defendant excluded each of these answers. It is urged that this is error, and in support of it we are cited to 6 Thompson, Negligence, See. 7754, where this language is used:

“Thus a.witness may state that a car was running fast, although he’had not sufficient experience to enable him to show how fast. The rule will allow a witness of ordinary intelligence to compare the speed of a train at the time of the accident with the speed of the train on previous days.”

The cases cited by the author in support of this are cases in which the evidence that the car or the train was running fast had been received, and the court refused to reverse the case because of the admission of such evidence. We think it doubtful whether in either of these cases the court would have reversed the case if the evidence had been excluded, and we find no case in Ohio which will support the claim made by the plaintiff here. The language that a car is moving “fast,” or “at an awful rate of speed,” or “very fast,” is so indefinite and uncertain that it is not an error to reject such evidence, although it is not necessary that one should be able to give definitely the speed with which the car was moving. We find no error of the court in this regard. While the plaintiff, who is a physician, was on the stand, the following question was asked him: “You may state what, if any effect, the injuries sustained there had on your ability to carry on your profession?”

An objection was made by the defendant to this question, and that objection was sustained. As to this, it is sufficient to say that no suggestion was made as to what answer was expected from the witness,- and hence we can not assume that the plaintiff was prejudiced by the ruling of the court. - This is true as to a number of instances, in which it is claimed that there was error in the ruling of the court on the admission of evidence.

Another alleged error took place upon the examination of one Gemlieh, a witness on the part of the plaintiff. He had testified that there was an ice wagon moving to the south on Giddings avenue, which crossed Wade Park avenue immediately before this collision took place, and from his testimony, and that of other witnesses, the jury might well have found that 'this wagon barely escaped being struck by the car. The wagon was on the easterly side of Giddings, while the plaintiff was on the westerly side; that is, as they would have passed one another, the wagon would be on the side of the street towards which the defendant’s car was at the time. The witness then said, speaking of the plaintiff, “the doctor could not see the street car.” A motion to take this from the jury was sustained. There was no error in this. If the question became important of whether the doctor could have seen the car, the jury could have found that out by having the real positions of the car, the wagon and the doctor’s buggy described to them together with a description of such wagon. Again it is urged that there was error in the ruling upon the introduction of evidence when the defendant was making its ease, and had placed one Harriman on the stand, who testified that he was a passenger upon the car; that he was accustomed to riding in street cars, and he thought he could approximately give the speed at which the car was moving. He was then permitted, over the objection of the plaintiff, to testify that “the car was moving somewhere about ten miles an hour.” In support of the plaintiff’s contention in this regard we are cited to the same section on Thompson on Negligence, where this language is used:

“There is authority for the determination that the rate of speed can not be shown by the opinion of witnesses observing, when from the inside, unless they are experienced and their observations is such as to make their judgment reliable. ’ ’

One case only, in support of this proposition is cited, that of Grand Rapids & I. Ry. v. Huntley, 38 Mich., 537 [31 Am. Rep. 321]. In the opinion of that case, at page 540, this language is used:

‘ ‘ In regard to opinions of persons riding in the cars, and not observing them from the outside, we are not prepared to say that they may not be received, but we think they should be excluded unless the witnesses first show such extended experience and observation as to qualify them for forming such opinions as would be reliable. It is not presumable that ordinary railway travelers usually form such habits. ’ ’

As has already been stated, the witness who was under examination here had testified that he had paid attention' to the rate of speed at which ears traveled, whether fast or slow, and that he thought he would be able to tell, approximately, about what rate of speed this car was traveling. There is no inherent reason why the testimony of one riding in the car is not ás competent as that of one observing from the outside-. The weight to be given to the testimony of witnesses upon this, as upon every other subject, is to be determined by the amount of knowledge which the witness has upon the subject, and concerning which he testifies. The evidence here sought to be excluded was competent ; the weight to be given to it was to be determined by the jury. Careful attention has been given to each of the alleged errors, in the matter of,rhling upon the evidence, and we find no error in any such ruling which would justify a reversal of the case.

It is further urged on the part of the plaintiff that the court erred in its charge to the jury. The court, among other things, said in its charge:

“Plaintiff in approaching this crossing was bound to use his senses to ascertain if a car was about to cross or was approaching the crossing, and if he failed to see or hear anything, when a careful and prudent man by exercising his eyes and ears with ordinary care would have discovered this car in so close proximity to the crossing that he could not safely drive across, he would be guilty of such negligence as would defeat his recovery. The fact that his view of the track toward the direction from which the car was coming, if such you find to be the fact, was obstructed by buildings or an ice wagon, would not excuse him from exercising ordinary care to ascertain whether he could cross in safety. If there were any such obstructions, plaintiff was bound to exercise such care as an ordinarily careful person should exercise under like circumstances. He must exercise ordinary care commensurate with the surroundings and circumstances in which he found himself. Not to exercise such care would be negligence on the part of the plaintiff. If there was any object to obstruct the view of the plaintiff in the direction from which the car was coming, and the plaintiff by the exercise of ordinary care could have seen the car and stopped his horse in time to have avoided this collision, it was his duty to exercise that care and stop his horse.”

It is said that though this is the rule applicable to the course • of the tracks of the ordinary steam railroad in the country, it is not the rule as applied to the course of street railroads in cities.

In Cleveland Elec. Ry. v. Wadsworth, 25 O. C. C., 376 (1 N. S. 483), affirmed no opinion, Wadsworth v. Cleveland Elec. Ry. 70 Ohio St. 432, this court said:

“It is contributory negligence, precluding recovery, for a passenger upon alighting at night from a street car to pass around the rear end of the car and attempt to cross a parallel track upon which cars are running in an opposite direction every three minutes, without looking in that direction, or checking his pace, or taking any precaution for his safety, he having knowledge of the surroundings and situation of the tracks and of the .operation of cars thereon.”

On page 379, Judge Laubie in his opinion says:

‘ ‘ There can be no question about the negligence of the railway company, of the men who were in charge of the west bound car; they were running at too great a rate of speed, in passing a ear that was stopping at this crossing. But it is evident, from his own testimony, and from all the testimony in the case, that the plaintiff was himself guilty of negligence contributing to his injury. ’ ’

Complaint is further made that the court used this language in its charge:

“Certain provisions of the city ordinance have been admitted in evidence, but if you find that the defendant at the time of this accident was running the car at a greater speed than 12 miles an hour, or did not ring the gong or bell or give any warning, that would not of itself constitute negligence, but may be considered by you with the other facts and circumstances of the case in determining the question of whether or not the defendant was negligent at this time.”

Clearly what was meant by this and what must have been understood by the jury, was that the simple fact that the defendant was violating an ordinance of the city did not of itself constitute negligence, for which the defendant would be liable. This is amply justified by what was said by this court in the case of Hoppe v. Parmalee, 11 Circ. Dec. 24 (20 R. 303), the second clause of the syllabus of that case reading as follows:

“The Supreme Court of Ohio has never yet gone so far as to say that an act done in violation of a statute or an ordinance is negligence per se. Nor has that court gone so far as to say that the violation of such statute or ordinance raises a presumption of negligence, although there are many authorities outside of Ohio in support of each of these propositions.”

In that case an infant has been employed in a manufactory; his age was such as to make his employment a violation of the statute. The trial court in its charge to the jury quoted the statute and then said that the jury might consider the statute in connection with the other facts in the case in determining whether or not there was negligence on the part of the employer.

It was urged that the court should have said more, and it is urged here that the court should have said more and explained to the jury that the plaintiff had a right to rely upon the observance by the defendant of the ordinance of the city applicable to the situation, but no request was made for any charge in that regard; and in Hoppe v. Parmalee, supra, this language is used in the first clause of the syllabus :

“Where what was said by the court to the jury in the charge was clearly the law, if the plaintiff desired the court to charge further on the subject in'question, a request for such further charge should have been made, and none having been made, the court did not err in failing to give any other proposition on the subject, whether such other proposition would have been warranted or not.”

So here we think that if the plaintiff desired further instruction to the jury on the question of the negligence of the defendant, a request for such charge should have been made.

Taking the entire charge together, we think the law stated to the jury was correctly stated under the rules in this state’ and that it was not misleading. Whether the rule adopted in Ohio is entirely consonant with reason, it is not for us to say. It is sufficient for our purpose that we follow the ruling as laid down by the Supreme Court.

„ That rule is announced in numerous cases, among others, in Meek v. Pennsylvania Co., 38 Ohio St. 632, where the first clause of the syllabus reads:

“In an action to recover for an injury alleged to have been caused by cars moving on a railroad track, proof that the company was moving its cars in violation of a city ordinance at the time the injury was inflicted, while not sufficient per se to create a liability, is yet competent to go to the jury as tending to show negligence. ’ ’

We find nothing in the charge in this ease which would justify us to reverse the judgment.

The question is raised, not yet mentioned in this opinion, upon the action of the court on a motion which was filed by the plaintiff to require the defendant to make definite and certain its answer, in specifying in what particulars the plaintiff was negligent. This motion was overruled. Unless some prejudice came to the plaintiff by reason of this action of the court, no reversal could be predicated upon it. There was no evidence introduced, nor was any sought to be introduced, of negligence on the part of the plaintiff which he could not have anticipated, and hence he was not prejudiced by this action of the court, whether he’ was entitled to’ have such motion sustained or not.

It follows from what has been said, that the judgment of the court of common pleas should be, and it is affirmed.

Marvin and Henry, JJ., concur.


author: HALE, J.

text:
    DIVORCE AND ALIMONY
    [Cuyahoga (8th) Circuit Court,
    February 29, 1904.]
    Hale, Marvin and Winch, JJ.

      Sarah Morgan v. Joseph Wakelin
    Delay of Twenty-four Years in Asking Alimony Makes Claim Stale.
    A delay of twenty-four years after a husband has secured a divorce in another state, before applying for alimony, during all of which time the husband was the owner of real estate situated in the county which might have been subjected to the payment of alimony and during which time the wife has remarried, makes a claim for alimony stale.

      E. Sowers, for plaintiff in error.

      Blandin, Bice & Ginn, for defendant in. error.

       Affirmed no opinion, Morgan v. Wakelin, 72 Ohio St. 656.

   HALE, J.

Mrs. Morgan, who brings this action, was formerly the wife of Wakelin. In 1876 they were divorced, and the same year she married Morgan and has been his wife since that time. She brings an action now for alimony. The ease was commenced in 1900, and seeks to reach real estate located in this county. One parcel of real estate is owned in common, as the deeds show, by her and her former husband, Wakelin. That property she has occupied during all these years, notwithstanding- the husband has the title to. one-half of it. The other parcel of property was acquired by Wakelin in 1888.

The court below held that under these circumstances the action was delayed too long; that the cause of action, being equitable in its nature, had become stale, and that courts would not entertain now an action to enforce it. This judgment of the court of common pleas was rendered upon the pleadings as they stood, without any evidence. If it is desirable to review the judgment of the court of common pleas, it can be easily done as it now stands. We are inclined to think the court of common pleas was correct, as more than twenty-four years had elapsed between the granting of the decree and the bringing of this action.

The reason why alimony was not allowed in the first action was because the divorce was granted in Arkansas, on the application of the husband, and gave the wife no opportunity to make a claim for alimony.

The property has all the while — one parcel since the divorce and the other parcel since 1888 — been in this county, and could have been reached as well before 1900 as in 1900, and we are inclined to hold that the court of common pleas was correct in rendering judgment on the pleadings and we affirm the judgment.

Marvin and Winch, JJ., concur.


text:
    ATTORNEY AND CLIENT
    [Cuyahoga (8th) Circuit Court,
    December 24, 1903.]
    Hale, Marvin and Winch, JJ.
    Louis B. Whitney v. Harrison W. Ewing, Admr.
    Party to Illegal Contract for Attorney Fees Cannot Invoke Aid of Court to Secure Division of Profits.
    A plaintiff who has knowledge of, and is party to, an agreement between an attorney and a client by which it is agreed that the attorney shall have one-half of all the money he succeeds in obtaining from the husband of the client as alimony or otherwise, is party to an illegal contract, working a fraud upon the court, and can not invoke the aid of the court to recover from the attorney one-half of the sum obtained in the transaction and which the attorney had agreed to divide with plaintiff for recommending him to the client as an attorney.
    Error.

      W. C. Ong, for plaintiff in error.

      Harrison Ewing, for defendant in error.
   MARVIN, J.

The plaintiff here was the plaintiff below, and brought suit against Harrison J. Ewing, then in full life but since deceased, seeking to recover upon a contract entered into between said parties and which, as set out in the petition, is as follows:

“Plaintiff went to the office of the defendant, Harrison J. Ewing, then a practicing attorney, and said to him that a woman by the name of Hornsby was in his (Whitney’s) office and desired the service of an attorney and had directed and authorized this plaintiff to select for her some one to act as her counsel and attorney for her, in order to recover alimony or maintenance and support from her husband. This plaintiff then and there said to said defendant, Harrison J. Ewing, that he (plaintiff) would recommend the appointment of Harrison J. Ewing if he (Ewing) should give to the plaintiff a fair proportion of whatever he (Ewing) should receive for fees or compensation finally in said ease and growing out of said appointment, whereupon the defendant said to this plaintiff that if he (the plaintiff) should recommend him (the defendant, Harrison J. Ewing) as counsel in the case he would give to the plaintiff one-half of all the fees and compensation received for such service.”

He then sets out that he did recommend the said Ewing to the said Mrs. Hornsby as a suitable person for her to employ as an attorney, and then introduced Mrs. Hornsby to the said Ewing; that he, the said Ewing, took the case for Mrs. Hornsby, and received as fees for his services the sum of $3,000, no part of which has been paid to the plaintiff, though he has demanded from the said Ewing the payment of $1,500 — one-half of the fee so received by Ewing.

Upon the conclusion of the evidence introduced upon th« trial by the plaintiff in court, on motion, directed the jury to return a verdict for the defendant, which was done, and judgment entered for him. On the part of the plaintiff it is urged that in so granting said motion the court erred. This brings us to a consideration of the evidence in the case.

Upon the trial it appeared that Mrs. Hornsby went to the office of the plaintiff, who was a private detective, August 9, 1897, and complained to him that her husband was neglecting her, failing and refusing to provide for her and was in other respects violating his obligations as a husband, and sought plaintiff’s advice, and he said to her that he was not an attorney and that it would be necessary to have an attorney in order to obtain her rights. She said to him that she was without money and that whatever compensation was received by anybody in helping her would have to come out of whatever was recovered from her husband, who had a considerable amount of monéy. "Whitney went to the office of Ewing, told him of the situation of the woman and agreed with him that he would bring her, if he could, to Ewing’s office, and that Ewing should pay him one-half of whatever he (Ewing) should receive as compensation for his services. Ewing then went with Whitney to the latter’s office and was introduced to Mrs. Hornsby. She stated her case to him, and he thereupon entered into a written contract with her by which it was agreed between them that Ewing should receive one-half of whatever he recovered from her husband for her. He filed a petition asking for alimony. Service was had upon Hornsby, who was the next day arrested at the instance of Ewing upon a charge of stealing a ring from his wife, and while so under arrest Ewing made some arrangement with Hornsby by which he was to file an answer in the alimony suit, which was prepared by Ewing and signed by Hornsby and filed. As a result of the transaction and within about two months of the time when the suit was brought Hornsby paid to Ewing in settlement of this suit the sum of $6,000, one-half of which Ewing paid to Mrs. Hornsby and retained the other one-half, $3,000, in pursuance of his contract with her. He never paid Whitney anything.

That the contract made by Ewing with Mrs. Hornsby was absolutely void is conceded by plaintiff’s counsel, as it must be by any reputable lawyer.

It was against public policy. It was calculated to impose upon the court to whom the appeal for alimony was to be made. It was a contract out of which Ewing had no right to profit and by which, if appeal had been made to any court, he would not have permitted to profit. If the plaintiff was a participant with Ewing in perpetrating this imposition upon Mrs. Hornsby, and in aiding in perpetrating this imposition upon the court, he is not entitled to profit by it, and no court should aid him to profit by it. This is practically conceded by counsel for the plaintiff. But it is urged that Whitney is entirely innocent in the matter; that he knew Ewing would be entitled to compensation for his services, and that it would be proper that he should receive something for introducing a client to him and aiding him in procuring evidence upon which the suit might be won, for, though no claim is made in the petition for any compensation for any other services than the introduction of the parties to each other and the recommendation of Ewing to Mrs. Hornsby, still the evidence shows that the plaintiff did aid in obtaining evidence. He sent a detective to disreputable places in this city for the purpose of obtaining such evidence. Whatever may be thought of rendering such aid, this case is determined upon the plaintiff’s participation in the fraudulent contract made by Ewing with Mrs. Hornsby.

In the plaintiff’s own testimony, in speaking about his first conversation with Ewing on the matter, he says:

“I said to him that I had said to her that she needed an attorney, after talking with her, and I had to come up to see if he would take hold of the case and would take hold of the ease with me.”

Again, he says:

“He said to me, ‘If you will take me down and introduce her we will take hold of this case together and whatever we get out of it for fees we will divide between us.’ ”

And again:

“He stated that he would take hold of this case with me, and that I was to look up and get proof where he had been around to different places where Hornsby had been, the different places here, and get proof to him, and we would take hold of this case together and we would pay ourselves out of whatever money was got from Hornsby for her, alimony or otherwise. ’ ’

Again, in speaking of this conversation he had between Ewing, Mrs. Hornsby and himself, this question was put to him by his own counsel: “What, if anything, was said about who was to collect the money and what was to be done with it, that is, the money he received; who was to collect it ? ” To this he answered, “Mr. Ewing.” Then followed the question, “State what was to be done with what was collected.” He answered: “To give to Mrs. Hornsby one-half of it, and the remaining one-half to be divided between Mr. Ewing and myself. ’ ’ That this was said at the first conversation had between the three together appears from the question and answer immediately following. The question is: “Well, then, what occurred? Where did they go, if they went anywhere, out of your office?” (Answer) “Went into Mr. Ewing’s office.” It appears that earlier in this same conversation Ewing had said that he would prepare a written contract between himself and Mrs. Hornsby, and that in the afternoon of the same day he reported to the plaintiff that such a contract had been executed. This seems to settle beyond any question that the plaintiff had full knowledge at the time that it was made of the contract between Ewing and Mrs. Hornsby, and that this contract with Ewing was dependent upon that. It follows that his contract with Ewing was tainted with the same fraud as was Ewing’s contract with Mrs. Hornsby.

It is urged here, however, that the action of the court resulted in permitting Ewing to hold and enjoy all the fruits of his own wrongdoing. This is true, so far as this case is concerned. When the courts shall be appealed to by the person or persons from whom Ewing fraudulently obtained this money, it can be determined whether any one shall be entitled to enjoy the fruits of such a fraud. It is said, that so far neither Mr. Hornsby nor Mrs. Hornsby have made any complaint of the conduct of Ewing, but this is no reason why the court should give its aid to any wrongdoer to profit out of this despicable transaction. To permit a recovery here would be for the court to lend its affirmative aid to a wrongdoer in obtaining profit from his own unlawful act. This can not be done. It is true that Ewing has no right to this money, but he has not asked for the intervention of the court, nor is the judgment entered by the court below any affirmance of any rights in Ewing to this money. It is only a denial of any rights in the plaintiff. The reasoning which would justify a judgment in favor of the plaintiff here would apply with equal force if there had been a contract pure and simple to obtain money from Hornsby by blackmail and divide the money so obtained between Ewing and the plaintiff, and if such money had been obtained by blackmail and paid into the hands of Ewing and the plaintiff had brought suit to recover a portion of it. The trial court had no opportunity in this case to give the money to the party to whom it rightfully belongs, but was only called upon to say whether, as it did not rightfully belong to either Ewing or the plaintiff, the plaintiff having aided in unlawfully getting it into the hands of Ewing, should have a part of it paid to him.

It seems clear that the judgment of the court of common pleas was right, and it is affirmed.

Hale and Winch, JJ., concur.


author: WINCH, J.

text:
    CONTRACT — EQUITY
    [Cuyahoga (8th) Circuit Court,
    November 4, 1904.]
    Hale, Marvin and Winch, JJ.
    Elizabeth Metzler et al v. Mason Steam Laundry Co.
    Subscriber of Stock in Violation of Pooling Agreement Cannot Insist on Performance by Others Without Participating Himself.
    When the subscribers to a stockholders pooling agreement have never done anything to put the agreement into effect and for a term of years have ignored its existence, one of the subscribers, who has himself purchased stock in violation of the agreement can not afterwards insist upon the carrying out of the agreement by the others while refusing to surrender to the pool the stock which he, himself, had purchased.

      Jas. F. Walsh and White, Johnson, MeCaslin & Cannon, for plaintiffs.

      Foran, McTighe & Cage, for defendant.
   WINCH, J.

The Mason Steam Laundry Co. was incorporated January 3, 1894, with an authorized capital of $10,000, divided.into 100 shares. On January 5, 1894, the incorporators of the company duly ordered books of subscription to stock to be opened and on the same day twenty-five shares of stock were subscribed for, directors were elected and the company organized.

By the terms of an instrument dated January 5, 1894, and signed by all of the stockholders of the company, each and every one of the subscribers agreed that for a period of five years no one of them would sell any of the stock which he held in the company, except to the other subscribers thereto, jointly, upon a valuation to be agreed upon, if possible, and, if not, to be fixed by arbitration, and each and all of the subscribers agree to buy any such stock so offered, jointly for the benefit of all of the subscribers at the valuation so to be fixed. It was further agreed that the subscribers should assign their stock to G. E. Milligan, one of the directors of the company, in trust to secure the performance of the agreement. By a like instrument signed January 5," 1899, the same agreements were extended for a further period of four years, or until January 5, 1903, the directors of the company for the time being and their successors in office being substituted for Milligan as trustees to whom the subscribers’ stock should be assigned in trust; both of these agreements provided that at the termination of the periods therein named said trustees should reassign the stock to the respective owners.

No such assignments of the stock to the trustees were ever made, but the stock certificates, after being properly signed by the officers of the company, were never removed from the stock certificate book which remained in the custody of the officers of the company.

Section 10 of the rules and regulations adopted by the stockholders provides as follows:

‘ ‘ The stock book of the corporation shall remain in the custody of the secretary and treasurer, who shall have control thereof, and not more than twenty-five shares of the capital stock of the company shall be sold without the consent of four-fifths of the board of directors and then only when it appears that it is necessary that more money shall be had in order to conduct and carry on the business of the corporation. ’ ’

While the subscribers to the pooling agreements mentioned do not appear to have complied with its terms to the extent of themselves purchasing stock of subscribers who desired to sell, the evidence shows some of the subscribers desired to dispose of their stock during periods covered by said agreements and gave notice of their desires, whereupon the Mason Steam Laundry Co. out of its own funds purchased certain of its own stock, the several transactions and amounts paid by the company being as follows: June 13, 1895, T. E. Milligan, 4-1/3 shares, $500; June 10, 1898, Annie Kearney, 1 share, $337; June 8, 1901, Nellie Carroll, 1/2 share, $50; July 15, 1901, Bose Callaghan, 1 share, $100, being in all 6-5/6 shares, and $987.50 being expended by the company in the purchase thereof and all the certificates representing said shares -were duly assigned to the “Mason Steam Laundry Co.”

November 28, 1903, and after the bringing of this suit, but before any relief with reference thereto was prayed for by any of the pleadings, the Mason Steam Laundry Co. sold the 4 1/3 shares of stock it had purchased of Milligan to J. T. Murphy, who paid for it the par value thereof.

The only other shares of stock which have changed hands are 11/2 shares purchased previous to January 5, 1903, by R. A. Butler, one of the plaintiffs in this suit, director and secretary of the company and one of the original subscribers for stock and of the pooling agreements. He testifies that he bought these shares with the knowledge of the company and the other subscribers and because they were unable to purchase them. While the evidence does not bear him out in all these claims, it does not apppear that the other subscribers after they had knowledge of these purchases by Butler ever offered to buy said shares or made any tender with reference thereto or complaint with regard thereof, except as complaint is made by cross-petition filed in this case.

At a regular meeting of the board of directors of the company held April 1, 1901, Butler being absent, the other four directors voted for and passed the following resolution: “Authorized more stock issued to help pay off the indebtedness of Mason Laundry Co.”

The minutes of the next regular monthly meeting of the company held May 6, 1901, all five directors being present, set forth the following:

“On motion. Limited to ten shares of stock issued to help pay off the indebtedness of Mason Laundry Company bills: Anna Colgan, four shares of stock; Maggie McIntyre, two shares of stock; Anna McNamara, two shares of stock; Hannah Larkins, two shares of stock. On motion ten shares of stock issued to the four above named.”

Butler protested against this action on the ground that the issue of stock was illegal and he then and there refused to take any of said shares. The other four directors voted for the motion and two of them were named in it as persons to whom the stock should be issued.

May 10, 1901, certificates of stock for ten shares were duly issued to the persons named in the resolution of May 6, but said certificates were never removed from the stock certificate book. Said shares were paid for and the company received cash to the par value thereof, which is used in paying part of its indebtedness.

August 2, 1901, Butler and Metzler filed their petition in the common pleas court praying that the defendant corporation be restrained from delivering said ten shares of stock to defendants, and that on the final hearing said sale of stock to be set aside and the defendants ordered to deliver up said certificates and that they be canceled.

By subsequent pleadings filed in the common pleas court and in this court, where the case was brought on appeal, issues have been made up as to the several transactions mentioned and we are now asked by plaintiffs not only to set aside said issue of ten shares, but also to set aside the transfer to Murphy of the 4 1/3 shares; on the other side defendants ask that Butler be decreed to hold the 11/2 shares of stock purchased by him, as trustee for all the stockholders and- subscribers to the pooling agreement.

Considering the questions raised chronologically and not attempting to set forth all the facts upon which our conclusions are based, we first take up the pooling agreements.

Plaintiffs claim that these contracts, so far as they are ex-ecutory, are illegal, being in restraint of alienation and are also without consideration, for the agreement to buy is at a price to be agreed upon, and if not agreed upon, then fixed by arbitration and, if so agreed upon or arbitrated, upon breach of the agreement the stockholder desiring to sell and still holding his stock would be entitled in damages only to the difference between the real value of his stock and the price agreed to be paid; there being no difference between the two there would be no damage, hence no consideration for the promise to buy. So far as executed, the plaintiff claims the pooling agreements are legal. Urging this distinction between executory and executed contracts of illegal character, plaintiff says that as to the 4 1/3 shares of stock sold by Milligan to the company the contract was executed, the company became the owner thereof as trustee for all the stockholders, that he is entitled to his pro rata share thereof and that the subsequent sale of said 4 1/3 shares to Murphy, who knew all the facts was illegal and should be set aside for plaintiffs’ benefit.

As to the 1% shares purchased by himself, Butler says he is not bound by the agreement to hold the same in trust for the other stockholders, because as to this 11/2 shares the pooling agreement is not executed, and said agreement being illegal, he can not be bound by it.

In other words, Butler asks the benefit of the pooling agreement as to the 4 1/3 shares of stock, but himself declines to live up to the spirit of it as to his 11/2 shares. This narrow ground upon which Butler stands does not give him an assured position before a court of equity. It was with much force that counsel for defendants suggested to the court that the time honored maxims “He who comes into equity must come with clean hands,” and, “He who asks equity must do equity,” were not mere platitudes, but should be applied in this ease.

The conclusions we have arrived at are in accord with such rules, but are based upon more specific reasons. We find as a fact, that the pooling contracts were never lived up to or acted upon by anybody. No stock was ever presented to the trustee for purchase, none was ever purchased by the trustees; it was presented by consent of all persons to the directors of the corporation for purchase. The 6 5/6 shares were bought by the directors of the corporation in behalf of the corporation, were paid for by the corporation funds, and were assigned to the corporation. This was done with the assent of everybody.

As to these shares the agreement was disregarded from the beginning.

We find the same to be true with regard to the 11/2 shares purchased by Butler.

We leave these purchases and sales where the parties left them and no relief is granted to either party under said pooling agreement.

It follows that the company, having made an unlawful use of its funds in the purchase of its own stock, not only had a right, but it was its duty, to resell the same and return to the treasury the funds thus improperly expended. It has attempted to do so with regard to the Milligan stock, resold to Murphy, and we find said sale was a fair one and should be confirmed.

There remains for consideration the issue of ten shares of additional stock, the sale of which was authorized in April and confirmed in May, 1901.

We hold that the stock books were not closed after the subscription for the original twenty-five shares and that the effect of Sec. 10 of the rules and regulations of the company was but a direction of the stockholders to the directors to go carefully in receiving further subscriptions. When the section was adopted twenty-five shares had been sold without consent of four-fifths of the directors, for then there were no directors, but having provided for the election of directors, the stockholders limited their discretion as to the issue of additional stock, requiring of them a four-fifths vote and their judgment as to the, necessity of a sale of stock as a means of procuring more money in order to conduct and carry on the business of the corporation.

We find that on April 1, 1901, four-fifths of the directors duly authorized the sale of ten additional shares and that a necessity then existed for the sale thereof to procure funds to pay the debts of the corporation, then existing, in order that the business of the company might be continued.

We find that the sale of these shares at par was for their full value. Indeed, we doubt if the stock at that time was worth par intrinsically.

The evidence as to the good faith of the directors in selling part of this stock to themselves is not entirely satisfactory; we are inclined to think all stockholders should have been notified that the ten shares were to be sold and that the four directors should not have trusted their own judgment that no other stockholders were able to take additional stock. One of the directors testified that all but three of the stockholders were notified of the additional stock to be sold. Butler was a director and admits he knew on Saturday before the meeting on Monday, May 6, that additional stock was to be sold. On May 6, he could have applied for his share of the additional ten shares. He declined to do so and said he would not take additional stock, but gave a bad reason for his refusal; the issue was legal if made in good faith. As to the other plaintiff, Mrs. Metzler, there is little evidence. But that both plaintiffs, if they were in anywise prejudiced by the confirmation of the sale by the directors on May 6, to two of their own number, have slept on their rights, there is no question. The stock was not paid for nor issued until four days later, yet they took no prompt steps to restrain the directors from issuing the stock or receiving pay therefor. They did nothing for three months; they knew of the financial difficulties of the company growing out of its connection with the Cuyahoga Savings & Banking Co., which failed just at that time, but they did nothing to help the company out, did not offer to take stock, stood by and let the defendants use their own money' and after the company had finally been put upon its feet again, they at last determined, not that they wanted part of said shares, but that they did not want the subscribers for the ten shares to keep them, and so they brought suit after three months inaction. We hold that they were too late to be entitled to the relief they now ask, in pleadings subsequently filed, that they have part of said ten shares, and finding no equities in the petition, it is dismissed, as are also all cross-petitions, each party to pay his own costs.

Hale and Marvin, JJ., concur.


text:
    INSURANCE
    [Cuyahoga (8th) Circuit Court,
    December 7, 1903.]
    Hale, Marvin and Winch, JJ.
    New York Life Ins. Co. v. Henrietta Kaufman.
    Condition as to Forfeiture for Nonpayment of Premium may be Waived.
    An insurance company may waive any of the conditions in its favor in a policy, including a provision that a failure to pay a premium when due shall work a forfeiture of the policy, and such waiver may be proven by proving a known custom of its agent to deliver its policies before receiving the first premium, although the policy contains a provision that only certain officers can extend time of payments.

      Garfield, Garfield & Howe, for plaintiff in error.

      J. 11. Sanvpliner, for defendant in error.
   MARVIN, J.

On January 8, 1900, Ignatz Kaufman gave his written application to the plaintiff in error for a policy of insurance upon his own life in the sum of $1,000 to be paid at his death to his wife, the defendant in error. A clause in this application reads:

‘ ‘ That the company shall incur no liability under this application until it has been received, approved, the policy issued thereon by the company, at the home office, and the premium has actually been paid to, and accepted by the company or its authorized agent during my lifetime and good health, except when the premium has been paid in advance to an authorized agent of the company, and a binding receipt on the company’s authorized form has been given by such agent, the liability of the company shall be as stated in such binding receipt. ’ ’

The agent of the company through whom this application was made was Max Stearn. He was an insurance solicitor acting for this company, soliciting and taking applications for policies, delivering them to the branch office of the company here, from which they were sent to the home office in New York, and, when accepted, the policies were sent back to the branch office here, and from such branch office were delivered to him and by him delivered to the assured and the premiums collected.

This application was delivered by Stearn to the branch office, forwarded to and accepted by the company, and a policy issued bearing date of January 12, 1900. This policy was forwarded by the company to the office in Cleveland where the application was made out, and Kaufman and Stearn both lived, on January 14, 1900, and was given to Stearn for delivery to Kaufman. Stearn took the policy to the place of business of Kaufman, found him busy and laid the policy on his desk, calling his attention to it. Nothing was said by either Stearn or Kaufman at this time about the payment of any premium and nothing was actually paid.

On January 23, 1900, Kaufman died, not having paid any part of the premium, and never having been asked to make any payment. Among other provisions of the policy, is the following:

“Only the president, a vice-president, the actuary or the secretary has power in behalf of the company to make or modify this or any contract of insurance or to extend the time for paying the premium, and the company shall not be bound by any promise or representation heretofore or hereafter given by any person other than the above.”

The policy contained also the following clause:

“This agreement is made in consideration of the sum of $48.48, the receipt of which is hereby acknowledged, and of the payment of $37.98 on January 8, 1901, and of the payment of a like sum on the 8th day of January of every year thereafter during the continuance of this policy.”

Upon the death of Kaufman, proper notices were sent and proofs made out and filed, and demand made for payment of the one thousand dollars. This was refused, whereupon the defendant in error brought suit against the. company and recovered a judgment for said sum. The purpose of the present proceeding on the part of the insurance company is to obtain a reversal of such judgment.

The claim made on the part of the plaintiff in error is, that the policy never took effect because no premium was ever paid. It relies upon the language of the application hereinbefore quoted. Of course, if the payment of the first premium was a condition precedent to the taking of the insurance, then the policy was not binding, unless such condition was waived. It is said that because of the language of the policy, first hereinbefore quoted, there was clearly no waiver by any person authorized to make such a waiver; the language being that,

“Only the president, a vice-president, the actuary, or the secretary has power in behalf of the company * * * to extend the time for paying any premium, and the company shall not be bound by any promise or representation heretofore or hereafter given by any person other than the above. ’ ’

If there was any waiver here is it evidenced by the fact that Stearn, the agent of the company delivered the policy to Kaufman without asking for any paymnt; and that Stearn, who had been the agent of the company for more than twenty years, frequently delivered policies in this way without receiving the first premium at the time of delivery. It appears from the evidence that the company had a form of receipt which it took from persons to whom policies were delivered, and who did not pay the premium at the time of such delivery — this receipt showing that the policy was held for examination only. No such receipt was given in this case, nor was it asked for. It is clear that Stearn understood that the policy was in force from the time of its delivery, and that he had simply extended credit to Kaufman.

As has already been said, the testimony of Stearns shows that it was common practice for him to deliver policies without the cash premium being actually paid at the time of delivery; that this was known to Mr. Taylor, who was the manager of the company’s business in this city, appears from his own testimony. It seems to have been the practice of the company to make out invoices of policies sent or put into the hands of the several agents of the company, the agent being charged with the premiums. The rules of the company required that upon the delivery of a policy, either a receipt showing that the policy was taken for examination only should be taken, or the premium should be paid in cash. It is clear, however, that his rule was not uniformally enforced, and that such fact was known to Mr. Taylor, the manager of the Cleveland branch of the business. That a provision in the policy to the effect that no waiver can be made by the agent, may itself be waived, is held in numerous cases.

In the ease of Knickerbocker Life Ins. Co. v. Norton, 96 U. S., 234 [24 L. Ed. 689], this language is used in the syllabus:

“An insurance company may waive any condition of the policy inserted therein for its benefit.
“As the company may at any time at its option give authority to its agents to make arrangements or to waive forfeitures, it is not bound to act upon declaration of its policy that they have no such authority * * * as denoting the power given by an insurance company to a local agent, evidence is admissible as to its practice in allowing him to extend the time for the payment of premiums and premium notes; and the jury upon such evidence may find whether he was authorized to make such an extension, and, if so, whether it was in fact made in the case on trial.”

In the policy under consideration in that case, this provision appears:

“If the said premium shall not be paid on or before twelve o’clock noon on the day or days above mentioned for the payment thereof,, at the office of the company in the city of New York (unless otherwise expressly agreed in writing) or to agents, when they produce receipts signed by the president or secretary, or if the principal of,/or interest upon said policy shall not be paid at the time and the same shall become dne and payable, then, and in every such case, the company shall not be liable to pay the sums assured, or any part thereof. ’ ’

By an indorsement on the policy, it was declared that:

“Agents of the company are not authorized to make, alter or abrogate contracts or waive forfeitures. ’ ’

The facts in this ease were, that the assured, after paying various premiums, failed to pay in full the premium due on April 20, 1875, but paid in cash, and gave for the balance, to-wit, $335, his two promissory notes, one due on June 20, and the other on July 20, 1875; each note contained a clause, declaring that if it was not paid at maturity, the policy would be void. The first note was not paid at maturity, but the claim was made that the agent of the company extended the time for payment of such note. The authority of the agent making such extension was denied, and the language of the policy itself, including the indorsement hereinbefore quoted, was relied upon as conclusively showing that the agent had no such authority. In the opinion, page 240, Mr. Justice Bradley calls attention to the provisions of. the policy hereinbefore quoted, and then says:

“And these terms, had the company so chosen, could have been insisted on. But a party always has the option to waive a condition or stipulation made in his own favor. The company was not bound to insist upon a forfeiture, though incurred, but might waive it. ’ ’

Without quoting further from this case, we regard it as an authority in point on the question under consideration.

In the case of Provident Sav. Life Assur. Soc. v. Oliver, 22 Texas Civ. App. 8 [53 N. W. 594], this language is used in the syllabus:

“Where a policy of life insurance provides that it shall not go into effect until the first premium has been paid in cash by the assured, and that no agent of the company has powers to waive this requirement, and it is shown that the local agent had frequently and for several years taken notes for the first premium, and that this practice was known to the company’s general agent, and no disapproval thereof was shown, such waiver will be binding on the company.”

In the ease of Berliner v. Travelers’ Ins. Co., 121 Cal., 451 [58 Pac. 922], this language is used in the syllabus:

‘ ‘ The general agent of a life insurance company may waive the payment of the first premium and deliver the policy and thereby make it a valid and substituting contract of insurance, notwithstanding the provision in the policy that it shall not take effect until the first premium is paid while the insured is in good health * * * the possession of the policy by the insured or by the beneficiary is prima facie evidence of its delivery as a valid and subsisting contract, and the burden of overcoming the prima facie case made by the production of the policy by the plaintiff in an action to enforce it. ’ ’

Attention has already been called to the fact that the policy itself acknowledged the receipt by the company of the first premium. This acknowledgment, it is conceded, is not binding upon the company, but is subject to be explained or denied; and to this extent the company itself denies the language used in the policy.

It would seem a great wrong to permit the company to be relieved from liability, if what was done by the agent was the customary method of transacting this business, and if the policy was delivered by Stearn to Kaufman under such circumstances that Kaufman had the right to understand that a temporary credit was given to him. As a matter of fact, it is probable that he never read the clause in the policy providing that none but the officers named in the clause could make or modify any provision contained therein, and that he never read the receipt for the first premium contained in the policy. But, however, this may be, we hold that it was proper to submit to the jury the question of whether there was a waiver as to the advance payment of the premium. This question was properly submitted to the jury. The charge properly stated the law applicable to the case.

Attention is called to the case of MacDonald v. Provident Sav. Life Assur. Soc., 108 Wis., 213 [84 N. W. 154; 81 Am. St. 885], In this ease a note was given for the first premium, and the payment of the same extended from time to time. Both in the application and in the policy it is provided that the policy shall not take effect until the first premium is actually paid. There was no acknowledgement in the policy of the receipt of the first payment. The agent had such receipt in his hands at the time he delivered the policy. He had taken a note from the assured when the application was made and when the policy was delivered, the note not being paid the agent retained the receipt. The assured gave as a reason why he did not then pay the note, that he did not know that his wife would be satisfied with the policy. On this state of facts it was held that there was no waiver, but this is clearly distinguishable from the facts as above recited from the case now under consideration.

The ease of Union Cent. Life Ins. Co. v. Hook, 62 Ohio St. 256 [56 N. E. 906], differs materially from the present case. In that case the policy had beén in the hands of the assured for nine years, when, it is claimed, the agent agreed to an alteration in its terms as to the payment of the tenth premium. At the trial, the plaintiff was permitted to introduce evidence as to conversations had with the agent prior to the time the policy was issued. This admission of evidence was held to be erroneous. Evidence was further permitted as to conversations between the agent and the assured nine years after the policy was issued, by which it was sought to change the terms of the policy. The admission of this evidence was held to be erroneous, and the court in its opinion lays stress upon the fact that the policy had been so long in the possession of the assured that he must have known its terms, using this language on page 363:

“Under such circumstances the presumption is conclusive, in the absence of fraud and mistake, that he knew the contents of the instrument.”

On page 265, this language is used in the opinion:

“We do not decide that there might not be estoppel by conduct, notwithstanding such an agreement, but that case does not arise here.”

Neither this nor the case of Travellers’ Ins. Co. v. Myers & Co., 62 Ohio State, 529 [57 N. E. 458; 49 L. R. A. 760], seem to us to be in conflict with the view of this case taken by the trial court and we hold that no error is shown by the record to have been committed by the trial court, and the judgment is affirmed.

Hale and Winch, JJ., concur.


text:
    INTEREST AND USURY — MORTGAGES
    [Cuyahoga (8th) Circuit Court,
    November 30, 1903.]

      Indemnity Sav. & Loan Co. v. Clinton S. Spangler, et al.
    Vendor Liable for Usurious Interest in Excess of Amount of Obligation Assumed by Vendee.
    When a building company which has given a bond at a usurious rate of interest together with a mortgage upon certain premises to secure its payment, sells the premises so mortgaged upon a land contract for a definite amount and later, in the performance of that contract, conveys the premises to the purchaser, and in its deed, stipulates that the purchaser assumes and agrees to pay a mortgage of a certain definite amount, such building company is liable to the purchaser for the difference between the amount which the purchaser agreed to pay, together with legal interest, and the amount called for by the usurious bond.

      Dickey, Brewer é McG-otuan, for plaintiff.

      McKisson & Curtis and Weed & Miller, for defendants.

      Affirmed no opinion, Fulton Building Co. v. Spangler, 72 Ohio St. 627.

   HALE, J.

This case comes into this court by appeal and was submitted upon the evidence and the admissions of the parties.

On May 1, 1896, the Fulton Building Co. executed and delivered to the plaintiff, the Indemnity Savings & Loan Co., a bond,' of which the following is a copy:

“ Cleveland, .0., May 1st, 1896.
“The Fulton Building Co. promises to pay to the Indemnity Savings & Loan Co., its successors or assigns, one hundred and twenty installments of twenty and 15/100 dollars each, one of which installments to be paid on the first business day of May, 1896, and one on the. first business day of each succeeding one hundred and nineteen months pursuant to the constitution and by-laws of said company and the conditions and stipulations in mortgage given to secure this bond.”

This bond was secured by a mortgage of same date, upon said premises, and delivered by the Fulton company to the indemnity company on September 17, 1896.

The Fulton company entered into contract with the Spanglers, whereby they agreed to sell and convey to them the premises described in said mortgage, for the consideration of $2,800, payable $200 easb in hand and the balance, $2,600, as follows: To assume and pay a mortgage to the Indemnity Sav. & Loan Co. of $1,487.79, also a mortgage to John W. Taylor of $684 and interest, and the balance of $428.21 in sums of $27 or more at the option of said grantee, after deducting therefrom the payments and interest stipulated for in the above mortgages, together with interest thereon from this date at the rate of six per centum per annum, to be due and payable semi-annually on the first day of June and December of each year.

On January 21,1897, the Fulton company conveyed by warranty deed the premises described in said mortgage and in said contract, to Clinton S. and Anna B. Spangler, in which the consideration expressed as $3,000 but which in fact was upon the consideration named in said written contract. It is stipulated in said deed that said premises are free and clear from all encumbrances whatsoever, except the mortgage to the Indemnity Sav. & Loan Co. ($1,487.79) and the mortgage to J. W. Taylor ($684), both of which are assumed by the grantee, and the last half of the taxes of 1896.

Payments were made under this contract by the Spanglers to the Fulton Company directly until after the conveyances in January. Sometime after the conveyance a change was made by which the Spanglers paid directly to the Indemnity Company.

The original loan from the Indemnity Company to the Fulton Company for which the bond and mortgage were given was $1,550, and there was no other consideration for said bond and mortgage.

The Spanglers have paid to the Indemnity Company more than the $1,487.79 named in the contract and in the deed, with interest at six per centum, and there is no evidence whatever of any other consideration for said bond by assessment of dues, or otherwise.

Under the issues and the evidence submitted at the trial several propositions are to be considered: • Between the mortgagor and the mortgagee there is no issue. The maker of the bond and mortgage, the Fulton Company, makes no claim of usury. Its claims are that whether the transaction is usurious or not it must be paid by the Spanglers who, as is claimed, in considera tion of the conveyance to them by the Fulton Company assumed and agreed to pay the mortgage according to its terms. That company desires the bond to be paid in full, but insists that the Spanglers shall pay it. The Spanglers, however, insist that the mortgage and bond has been paid in full; that, legally, only the sum loaned and six per cent, interest can be collected, and that more than that has been paid to the Indemnity Company already. They claim further that if the mortgage must be paid to the Indemnity Company, the maker, the Fulton Company, must pay all that now remains due and relieve the premises conveyed to them from any lien by reason thereof.

So far as appears from the evidence, the bond, in the form above recited, was executed and delivered by the Fulton Company to the Indemnity Company for the sole and only consideration of a loan to it of $1,550 at the date of the bond, and it is evident as between the original parties to the bond that the transaction was usurious, and had the Fulton Company so answered as between it and the Indemnity Company, the court would be compelled to so hold. But, as no such issue was made, the transaction as between the original parties must be considered and treated as valid in all respects.

Must the bond be paid according to its terms by the Spanglers? The transaction between the Fulton Company and the Spanglers commenced with the making of the land-contract of May 1, 1896. We hold that that contract was competent as explaining the interpretation to be placed upon the deed and as evidence of the true consideration agreed to be paid by the Spanglers to the Fulton Company. The Spanglers agreed to assume and pay a mortgage to the Indemnity Sav. & Loan Co. of $1,487.79. There was no mortgage of that description to the indemnity company. It is said that this sum was the present worth of such mortgage. It was in its present worth upon a basis of interest at nine per cent, per annum, but upon a basis of six per cent, per annum the amount of the mortgage was several hundred dollars in excess of that. The Spanglers agreed to pay to the Fultpn company for said premises $2,800. With the other payments the $1,487.79 exactly equalled the $2,800 and this is all we think that the Spanglers were under any obligation or legally bound to pay.

There is no evidence in the case tending to show that the Spanglers had any knowledge of the mortgage or of the bond or of its terms at the time of entering into the contract other than as expressed therein. The exact amount to be paid by the Spanglers to the Fulton company for said premises is definitely fixed by the terms of said contract, together with the terms of payment and to whom such payments were to be made. AH these payments the Spanglers have made, together with interest at six per cent., as stipulated in the contract. We are of the opinion that no interpretation should be placed on this contract requiring them to pay more.

If the Fulton company is desirous that the bond should be paid according to its terms without reference to any claim for usury, without reference to any claim that the contract is usurious, the excess called for by the bond in addition to the amount which the Spanglers stipulated to pay must be paid by it. It has made no contract, in our judgment, with the Spanglers by which they are to pay such excess arising out of the fact that the original contract was usurious.

The claim is made that the controversy arising, or that may arise, between the Fulton company and the Spanglers, can not be settled in this action. We hold otherwise. If the payment of this bond was not assumed, as we hold it was not, by the Spanglers according to its terms but only a definite amount named in the contract and deed, then there was more due upon the bond, according to its terms, than the Spanglers had agreed to pay, and the Fulton company, being the maker of the bond and the mortgage, was a necessary party to the taking of an account upon the bond and mortgage, and being a necessary party, aU controversy between it and the Spanglers necessarily could be settled in this one action.

Supposing the mortgage had been given to secure two separate bonds the payment of one of which was assumed by the grantees, the Spanglers; then, manifestly, on a foreclosure of the mortgage, the mortgagee, although having conveyed the premises, would be a necessary party to an accounting and that accounting would necessarily fix definitely the rights between the Fulton company and the Spanglers.

Tbe remainder due upon this bond according to its terms may be ascertained. Counsel can undoubtedly agree as to that amount. That amount, as the issues now stand, must be held to be a lien upon the premises described in the mortgage, which sum the Fulton company is ordered to pay within sixty days from the first day of this term of court, in default of which said mortgage may be foreclosed and order of sale issue of said premises. The defendants, the Spanglers, may, however, to save the said premises from sale, pay said sum to the indemnity company, and if so paid by them, an execution may issue in their favor against the Fulton company to collect the sum so paid by them.

Marvin and Winch, JJ., concur.


text:
    COURTS — ERROR
    [Cuyahoga (8th) Circuit Court,
    February 23, 1903.]
    Hale, Marvin and Winch, JJ.
    Bertine Robinson Palmer v. Annie J. M. Robinson, Exrx.
    1. Common Pleas cannot Reverse Probate Court in Error Proceedings when no Bill of Exceptions is Filed.
    When error is prosecuted from an order of the probate court to the common pleas, but no bill of exceptions is filed showing upon what evidence the probate court acted, it will be presumed that it acted upon proper evidence, and it is error for the common pleas court to reverse the order of probate court.
    2. Probate Court without Power to Require Deposit of Special Fund with Court.
    The probate court is without power upon the final settlement of an estate to order the deposit of a certain amount of money in the name of the court to await the outcome of an attempt to collect a note from the distributee.
    Error.

      A. W. Mayer and B. Pearce, for plaintiff in error.

      W. C. Rogers, for defendant in error.
   MARVIN, J.

The defendant in error is the executrix of the last will and testament of William Robinson, deceased, and is also the widow of said deceased.

The plaintiff in error is a daughter of said defendant and, with her, is the only devisee and legatee under the will of said deceased.

Said executrix on October 15, 1901, filed, in the probate court of this county, the court in which the estate of said deceased was being settled under the will, what purports to be a final account of the administration of the estate of the deceased. On November 1, 1901, exceptions to this account were filed by the plaintiff in error. In said account the executrix charges herself with having received on account of said estate as follows: “Received from sale of land of deceased, $5,055.00. Received from collection from distributive share, note of Bertine Robinson Dietrich, $511.50. ’ ’ Among the credits which the. executrix claims in said account is one which reads as follows: Paid allowance to widow, judgment and interest, $1,950.”

The exceptions filed to this account specify as one of the items excepted to, the item of '$511.50 charged by the executrix to herself as a collection from distributive share, note of Bertine Robinson Dietrich. It should be said that Bertine Robinson Dietrich is the same person as Bertine Robinson Palmer.

Exception is further taken to the credit in the account hereinbefore quoted of “Year’s allowance to widow, judgment and interest, $1,950.” Other items are excepted to.

A hearing was had in the probate court upon this account and the exceptions in reference thereto.

The present defendant in error brought proceedings in error in the court of common pleas to reverse the judgment of the probate court. The probate court sustained the exceptions to the item of $511.50, both as to its being charged to the executrix and being taken from the portion to be distributed to the plaintiff in error. The court of common pleas reversed the probate court in this regard. There was no bill of exceptions filed in the court of common pleas, showing upon what evidence the probate court acted in making its order; and, without some evidence, it is difficult to understand how the court of common pleas determined whether or not there was error in the order made by the probate court. As a part of the transcript filed in the court of common pleas, there is a copy of the will of the deceased. By the terms of that will, certain real estate named is bequeathed to the widow of the deceased for the period of her natural life, and, at her' death, said real estate is devised in fee to Bertine Robinson Palmer.

It is said in argument that the money with which the executrix charged herself as having received from the sale of lands, is the avails of the sale of this real estate thus bequeathed and devised. Without some evidence on the subject we do not know how that fact is found, though it is probably true, as there is a credit taken by the executrix for the sum of $1,085.09 as the value of her life-estate in the real estate sold. No exception was taken to this, and we presume that there was some evidence before the probate court which disclosed some arrangement between the plaintiff in error and the defendant in error by which the value of this life estate was ascertained.

Looking to the will alone, we are unable to see how the plaintiff in error was entitled to any distribution during the lifetime of the widow — and the court of common pleas had only this will before it as evidence.

Attention is called to this because unless there is some distributive portion to go to the plaintiff in error, we fail to see how she could have been prejudiced by a charge being made by the executrix of this $511.50; but the common pleas court found that there was error in this behalf. Since neither the court of common pleas nor this court can know upon what evidence the probate court acted in making such order, the presumption is that there was some evidence introduced justifying the order made by the probate court, and it was, therefore, error for the court of common pleas to reverse such order of the probate court.

As to the item of $1,950 claimed for the year’s support and interest, we are equally in the dark as to the evidence upon which the probate court acted.

We learn from the transcript that a certain amount was allowed by the appraisers to the widow for such year’s support; that upon exceptions to the allowance made by the appraisers, the probate court fixed the allowance for the widow, at $1,400. Whether such allowance should draw interest up to the time when it was paid would depend on facts which were not disclosed to the court of common pleas by the record and are, therefore, not disclosed to us; and it must therefore, be presumed that such a state of facts was disclosed before the probate court as justified the order made by that court which was that the widow should be allowed interest on said $1,400 for the period of two years and no more. • Certainly a state of facts may exist which would justify this order.

If the widow, being herself executrix, was negligent in the performance of her duties, either in converting real estate into money or in any way whereby she was responsible for the nonpayment of this sum at a time earlier than it was paid, she should not profit by it by having interest upon it. If for two years of the time that elapsed between the time when the amount of this allowance was fixed by the probate court and the time when by proper diligence on her part it would have been paid; or, in any event, if two years elapsed after the expiration of. one year from the giving of her bond during which two years there was no money to pay this allowance, and such want of money was, in no way, chargeable to her negligence, and then it would seem proper that an allowance should be made for two years, and if the rest of the time that elapsed before the payment was due to negligence on her part, it would certainly be an injustice to this estate to allow her interest for that delay in payment caused by her own negligent administration. In short, there are facts which may have existed, entirely justifying the order of the probate court. Those facts not being brought before the court of common pleas, that court erred in reversing the probate court in that regard.

A further order, however, was made by the probate court that “the sum of $350 out of any distributive share of said Palmer be, and is ordered to be, reserved and to remain in the registry of this probate court undistributed, subject to the order of the probate court, and to be deposited in the name of the probate judge, on interest, and to abide any recovery against said Palmer on said claim or note to be ordered distributed to her with interest at the end of one year if no account is taken thereon or recovery had. ”

This order was reversed by the court of common pleas and, we think, properly so. We know of no authority of law by which the probate court had any jurisdiction to order such deposit of money to be made.

It is the order of this court, therefore, that the judgment of the court of common pleas be affirmed in so far as it reverses the judgment of the probate court as to the deposit of this $350. In all other respects the judgment of the court of common pleas is reversed and that of the probate court affirmed.-

Hale and Winch, JJ., concur.