text:
    CLAIMS OF PARENTS FOR SUPPORT OF MINORS.
    '[Circuit Court of Hamilton County.]
    Peter Spink v. Alphonsa Spink; two cases.
    Decided, November 18, 1905.

      Minors — Liability of Estate of — For Past Support by Parents — Jurisdiction of Probate Court Over Claim for — Special Cases Warranting an Allowance — Divorced Mother Without Means Entitled to Allowance — Pleading—Defect in Application Cured by Evidence.

    1. It is the general rule of law that no allowance should be made to either father ’of mother out of the estate of a deceased minor child for past maintenance and support, except in special cases.
    2. A special case warranting an exception to this rule is presented, where a mother who has furnished such support had little or no estate or an estate trifling in comparison with that of the minor, and the support was furnished to the minor for the benefit of the minor under conditions which were coercive upon the mother and compelled her to assume a burden which was not naturally and legally hers alone.
    3. When such a claim is presented to the probate court under Section 6100, Revised Statutes, there is drawn to that court the chancery jurisdiction necessary to a complete exercise of the jurisdiction specially conferred by the statute.
    4. The application in this case contains sufficient allegations to make out a special case; but were this not true, the evidence cured the insufficiency and fully justified the probate court in applying the general rather than the special rule.
    Jelke, P. J.; Swing, J., and Gieeen, J., concur.
   These cases arose in the probate court on the application of Alphonsa Spink, administratrix of the estates of Alfred Spink and' Alphonse Spink, respectively, under provision of Revised Statutes, Section 6100:

“Whenever an executor or administrator shall present to the probate court for its allowance, any debt or claim of which he is the owner, against the estate which he represents, amounting to fifty dollars or more, the court shall fix a day, not less than four weeks nor more than six weeks from the presentation of the said debt or claim, when the testimony touching said debt or claim shall be heard; and the court shall forthwith issue an order, directed to said executor or administrator, requiring him to give notice in writing to all the heirs, legatees, or devisees of said decedent interested in said estate, and such creditors as are therein named, which notice shall contain a statement of the amount claimed, and designate the time fixed for hearing the testimony, and shall be served upon the persons named in said order at least twenty days before the time fixed for such hearing ; and if any of the persons mentioned in said order are nonresidents of the county, service of said notice may be made upon them, by publication for three consecutive weeks in a weekly newspaper, published or circulating in said county; all of the persons named in the order shall be deemed parties to the proceeding, and any other person having an interest in the estate may come in and be made a party thereto.”

Said application is in words as follows:

“Alphonsa Spink, administratrix, represents that she is the mother of the decedent, who died April 29th, 1902, at the age of thirteen years, leaving no brother or sister or descendants thereof.
“That on June 14, 1897, this applicant was divorced from Peter Spink, the father of decedent, for his aggression, and that every since then and for over three years before, in all over eight years, she has had the sole care and expense of clothing, supporting, housing and schooling of said minor by her own efforts and out of her own means, which are very small. That said expense has amounted to over one'hundred and fifty dollars per year. That there are now unpaid debts of said estate, and she therefore prays the court to -allow her said claim. ’ ’

On said application, these claims in due course were allowed ■ and approved by said probate court, error to. which allowance was prosecuted to the court of common pleas, and there affirmed, and error to such judgment of affirmance is now prosecuted to this court. It is contended:

First. That the probate court has no jurisdiction under the provision of Revised Statutes, Section 6100, to pass upon questions necessarily involved in the allowance of these claims, but that the same could only have been adjudicated in separate actions for that purpose, brought in a court of chancery.

Second. Under Revised Statutes, Section 3140-1, “when husband and wife are living separate and apart from each other, or are divorced, and the question as to the care, custody and control of the offspring of their marriage is brought before any court of competent jurisdiction in this state, that the father and mother of said children shall stand upon an equality before the courts as to the care, custody and control of said offspring, so far as it relates to their being either father or mother of said children.” The mother and father as to the support and maintenance of children after divorce, stand on an equality before the law, and are equally bound to support and maintain their minor children, and that by reason of this provision, Alphonsa Spink could acquire no claim against the estate of her children for their support and maintenance.

It is contended on behalf of the plaintiff in error that Alphonsa 'Spink might in a proper ease have had a claim against Peter Spink, the father, for the amount expended in the maintenance and support of their minor children, under the rule cff Fulton v. Fulton, 25 O. S., 229, the syllabus of which is as follows:

“Where a divorce, a vinculo, has been granted to a husband, on account of the aggression of the wife, and the minor children of the parties assigned to the custody of the divorced wife, without an order respecting their maintenance, and while so in her custody she furnished to them necessaries, she can not recover against her former husband, their father, for her expenditures in this behalf, in the absence of proof of a promise by him to pay for such necessaries or of a request that they should be furnished to the children.”

Or still a stronger claim and case under Pretzinger v. Pretzinger, 45 O. S., 452::

“The obligation of the father to provide reasonably for the support of his minor child, until the latter is in a condition to provide for his own support, is not impaired by a decree which divorces the wife a> vinculo, on account of the husband’s misconduct, gives to her the custody, care and nurture of the child, and allows her a sum of money as alimony, but with no provision for the child’s support.”

Third. It is'further contended that whatever order a court of chancery or a court of probate in a proper case might make in regard to the -continuing maintenance, support, and -education of minors, and expenditures -of their estate- for these purposes, th-at under no circumstances would an allowance be made charging such minors’ estate for past maintenance and support. Th-e rule in this regard as most generally observed in this country is laid down In re kane et al, Infants, in 2 Barbour’s- Chancery Reports, page 375; opinion per Chancellor Wall worth:'

‘ ‘ The English court of chancery formerly adopted a very rigid rule in relation ito past maintenance by the father, by refusing to make a retrospective order in any ease. It seems, however, th-at the proper rule here is- for the coui-u to direct an -inquiry' as to the propriety of allowing for past maintenance, where a special ease is made; but not to ¡direct such an inquiry, as -a matter of course, upon a mere petition showing the inability of the father to support his children, at the time su-eh support was furnished them.
“To entitle the father even to an inquiry as to ¡the propriety of making an -allowance for past support -of 'his infant children, he should state ;a special case, showing the extent of his means at th-e time such support was furnished, and the particulars of the extraordinary- -expenditures, for the actual benefit of th-e infants, which create an equitable claim in his favor. ’ ’

Also see the -case -of Wilkes v. Rogers, 6th Johnson’s Reports, page 564, -at page 594:

“As to the objection that allowance can not be made for past time, th-e respondent’s counsel -appeared to- abandon it. The decisions are, conclusively-, that an allowance may retrospect. Lord Thurlow, who first laid down th-e rule that allowances should not be for time past, stands alone. Those who went before, and came after him, upon solid and just principles, made no distinction between the time past and the time to come.”

Howard’s Practice Reports, V-ol. 40; in the cas-e -of Smith v. Geortner, Jr., et al, at page 185, the second proposition of the syllabus is as follows:

‘£ To entitle a father to an inquiry as to th-e propriety of making ,an allowance to him for the pa-st maintenance -of his infant children, he -must state a special ease, showing the extent of his -means at the time such support was furnished, and the particulars of the extraordinary -expenditures for the’ actual benefit of the infants which created an equitable claim in his favor.”

Iil 32d Minnesota Reports, In re Besondy, at page 387:

“The obligation of parents to support their minor children having a separate income is thus summarily stated: ‘ The father is bound to support his minor children if he be of ability, even ■though they have property of their own; but this obligation in such a case does not extend to the mother’ (2 Kent Coman., 191). In other words, the rule is not so rigorous in the ease of the mother; and if the child has property, the mother is not bound to provide for it® maintenance where the father would be. 1 Parsons on Contracts, 309.”

In Florida Reports, Yol. II, Osborne and Wife v. Van Horn et al, page 360:

“It may be regarded as established by the English and American decisions, that a mother is entitled to an allowance for the maintenance of her children out of their fortunes, especially where -her own fortune is inadequate.
“In general this allowance is to be confined to the annual income, and should not extend beyond it; but where the property is small and more than the annual income is necessary for the maintenance of the infants, the court will sometimes allow the capital to be broken in upon.”

In Texas Supreme Court Reports, Vol. 76, Freybe v. Tiernan, at page 290:

“It is a sound principle that the corpus of the estate of an infant should not b'e entrenched upon for his support and education as -long as the income is sufficient for that purpose; but it is held that when the means of the parent are not ample, expenditures by the parent for the support and education of the minor child may be made a charge upon the body of the estate, provided it be so small that the income is wholly inadequate for the purpose. In re Bostwick, 6 Johns, Ch. 100; Osborne v. Van Horn, 6 Fla., 360.”

And Missouri Reports, Vol. 55, Olte v. Becton et al, at page 101:

“The law seems to be well settled, that where the father oi mother, or a step-father, maintain infant children, they have no legal right to recover for past maintenance in an action at law, unless it be upon an express promise to pay the same after their arrival at years of maturity. But a court of chancery may allow it out of their estate, where the parents are- poor, ■and the infants are entitled to estate large enough to admit oE it and leave enough for their future education and maintenance. Each case must depend on its own facts. Here are three infant children to be educated out of this fund, and it is not more than sufficient for that purpose. The guardian has the right to appropriate it towards their education and future support, and he ought to do so with the approbation of the probate court having jurisdiction over ihim. We do not feel at liberty on the facts of the case to order anything to be paid to the plaintiffs.”

It appears from these cases that the general rule is that no allowance should be made to either father or mother out of 'the estate of their deceased minor children for their past maintenance and support except in special cases.

Counsel for plaintiff in error misconstrues these authorities when he contends that this means that there must be brought a separate action in a court of chancery to secure the allowance of these claims, or the same can not be allowed under Revised Statutes, Section 6100.

The special case which, makes the allowance of a claim an exception to the general rule is one of special circumstances in which it must appear that the parent, mother or father, who was furnishing such, support, had little or no estate, or an estate small and trifling in comparison to the estate of the minor, and that the support -and maintenance was given to the minor for the minor’s benefit under circumstances and conditions which were coercive upon such mother, and where in_ doing so she was compelled to assume a burden which was not naturally and legally hers alone. When such claim is made and presented in s probate court, under Revised Statutes, Section 6100, we are of opinion that it is properly within the jurisdiction of that court.

50 O. S., Clapp et al v. Banking Company et al, opinion per Spear, J., at page 537:

“Although the probate court is of limited and statutory jurisdiction, it is, we think, a mistake to suppose that it has no equity powers unless the same are expressly conferred. A power given to make a particular order implies authority to hear and dispose of all questions which it is necessary to have settled before the making of snch final order, unless the needed authority is distinctly denied.”

The jurisdiction conferred by Revised Statutes, Section 6100, must draw to it such chancery jurisdiction necessary to a full and complete exercise of the jurisdiction specially conferred. TIence, in the consideration of an application properly brought under Revised Statutes, Section 6100, the court of probate exercises all necessary and sufficient chancery powers to work out full and complete justice in the premises.

The question has been raised as to whether the application in this case contains sufficient allegations to make out a special case, and we are inclined to think that .it does; but whether it does or not, an examination of the record shows that at the hearing, the evidence fully made out a special case justifying the probate court in applying the exception rather than the general rule. In the absence of particular objection and exception the decree cures whatever insufficiency there may have been in the application.

It appears from the record that Alphonsa Spink was divorced from her husband for his aggression, and that the custody of the two children, Alphonse and Alfred, was confided to her, and that she for more than eight years supported and maintained these infants without any assistance from their father. During all this time Alphonsa Spink had almost no estate, but was dependent upon her own labor and exertion. While the duty of the father and his culpable dereliction in this regard would not be competent in a suit at law between Alphonsa Spink and the legal representative of the estates of said minors, yet in chancery in considering whether or not such special ease has been made out as to justify the chancellor in applying the exception as to past maintenance and support it is competent for the chancellor to remember that in the event of the application being denied, one-half of the small estates of these deceased minors would go to the father, Peter Spink, who had at all times been neglectful and derelict in his duty as to their maintenance and support, and who by his aggression had thrust this unnatural and heavy burden upon Alphonsa Spink.

Otis H. Fish, for plaintiff in error.

Bates & Meyer, contra.

We are, therefore, of the opinion that these cases come fairly within the exception as to special cases, and the probate court did right in allowing these claims, as likewise did1 the court of common pleas in affirming said' judgment; and its judgment is affirmed. ,


source: Caselaw Access Project

license: Public Domain

text:
    REVIEW OF JUDGMENT UNDER. A STATUTE SUBSEQUENT TO ENTERING OF SUIT.
    [Circuit Court of Hamilton County.]
    John H. Gibson, Treasurer, v. Griffin T. Miller et al.
    Decided, November 14, 1905.

      Sale of Realty for Taxes — Joinder of Defendants and Causes of Action —Judgment—Tested Rights Under — Review of, Under Statute Subsequent to Entering of Suit — Retroactive Legislation — Amendment of Statute Touching the Remedy — Effect of Appeal.

    1. Ah act making broader the right of joinder may be made applicable to pending actions in which judgment has not yet been rendered.
    2. Since an appeal vacates the judgment appealed from and the cause stands in the appellate court as a pending action without judgment, the provision of Section 3 of the act of April 25, 1904, relating to joinder in suits for the sale of real estate for taxes, is applicable to suits pending at the time of its enactment and brought up on appeal subsequently thereto.
    Jelke, P. J.; Swing, J., and Giffén, J., concur.
   This action was begun in the court of common pleas by filing a petition on November 12, 1903, against Caroline B. Donohue et al, for the sale of certain real estate on account of unpaid taxes and assessments under an act entitled “To- amend Section 1104 of Revised Statutes of Ohio, passed April 4th, 1902” (9ñ O. L., 103).

On January 22, 1904, Caroline B. Donohue filed a demurrer:

“Now comes Caroline B. Donohue, one of the defendants herein, and demurs to the petition upon the following grounds:
“1. Separate causes of action against several defendants are improperly joined.
“2. There is a misjoinder of parties defendant.
“3. The petition does not state facts sufficient to constitute a cause of action.”

On April 2, 1904, said demurrer was overruled by the following entry:

“This cause coming on to' be heard on the demurrer to the petition by Caroline B. Donohue, the court on consideration overrules the same; to. ;all of which defendants! except; twenty-days’ time given to file answer.”

On August 4, 1904, judgment and decree for sale were entered against said Caroline B. Donohue, to which she excepted and gave notice of appeal. The docket also shows: “August 5th, 1904, notice of intention to appeal filed; August 5th, 1904, entry giving notice of appeal and fixing bond in the sum of $500;” which bond was subsequently given, and appeal duly perfected.

We are of opinion that the common pleas, court erred in overruling the demurrer of the said Caroline B. Donohue under the law as it stood when the petition was filed and when the demurrer came on for hearing 'and was passed upon by said court. We think that there were separate causes of action against several defendants improperly joined, and' that there was a misjoinder of parties, defendant.

On April 25, 1904, said Section 1104, as amended in 95 O. L., page 93, was again amended, and the following paragraph inserted :

“And in proceedings hereunder the county treasurer may join in -one action all or any number of lots or lands, but the decree shall be rendered severally or separately, and any proceedings may be severed in the discretion of the court for the purpose of trial, error or appeal, where an appeal is. allowed, and the court shall make such order for the payment of costs as shall be deemed equitable and proper.”

And Section 3d:

“This action shall take effect and be in force from and after its passage, and shall apply to all existing causes of action and pending actions. ’ ’

Section 79, Revised Statutes, provides:

“Whenever a statute is repealed or amended, such repeal or amendment shall in no manner affect pending actions, prosecutions, or proceedings, civil or criminal, and when the repeal or amendment relates to the remedy, it shall not affect pending actions, prosecutions, or proceedings, unless so expressed; nor shall any repeal or amendment affect causes of such action, prosecution, or proceeding, existing at the time of such amendment or repeal, unless otherwise expressly provided in the amending or repealing act.”

Since said cause came into this court on appeal, counsel for Caroline B. Donohue has again renewed and pressed the demurrer which the court below had overruled, and now contends that the amendment of April 25, 1904, which provides for and permits the joinder complained of, can not constitutionally be made to apply, inasmuch as this cause went to judgment below, and that the said Caroline B. Donohue has a vested right in having her rights and remedy determined under the law existing as it did prior to April 25, 1904. Counsel for Caroline B. Donohue rely on the case of Gompf v. Wolfinger, 67 O. S., page 144, the third proposition of the syllabus being as follows:

“A judgment which is final by the law's existing when it is rendered can not constitutionally be made subject to review by a statute subsequently enacted; and the act of October 22, 1902, to amend Section 6710, Revised Statutes, being incapable of a retrospective operation, does not confer upon the court jurisdiction to review' judgments which the circuit court had rendered prior to its passage and which were not subject to review under the provisions of the act of May 12, 1902. ’ ’

There is no doubt that a judgment which is final by the laws existing when it is rendered,'is an end to the controversy, and no legislative act can operate retrospectively to give an appeal or petition in error in derogation of such final judgment. The party in whose favor such judgment is rendered has a vested interest and any legislative act seeking to impair it would bé unconstitutional and void. This ease, however, presents a different situation. The matter of joinder is a matter relating purely to the remedy and does not affect any of the substantive rights of the parties, but merely the question of how, and when, and in what company those rights shall be worked out and determined.

The act making such joinder possible in this case was passed long prior to the rendition of the judgment appealed from;.at the time the act of April 25, 1904, was made applicable to pending actions there was no judgment. This act of April 25, 1904, removed the objection, because of which we think the common pleas court should have sustained the demurrer of April 2, 1904.

Again, the appeal which was duly prosecuted under laws existing and unchanged in that regard from the time of the filing of the petition until the present consideration, if entertained by this court, entirely vacated and wiped out the judgment of the court of common pleas, and the cause stands in this court as a pending action, without any judgment, and we see no reason why under the provisions of Revised Statutes, 79, and the special provision of Section 3 of the act of April 25, 1904, this latter law should not be applied to the matter of joinder which pertains purely to the remedy. If we felt that the act of April 25, 1904, affected any judgment in which Caroline B. Donohue had a vested interest, we would feel that the case of Gompf v. Wolfinger, supra, would apply, but the judgment and decree below were against Caroline B. Donohue, and it was her bond and appeal which has suspended the same, and why she should seek to use this judgment, which she desires annulled, and a decision contrary to which she seeks to obtain by her appeal in these proceedings, as a valid and substantial barrier to the application of an amendment touching the remedy, and claim a vested interest thereunder, we can not see.

"We are therefore of opinion that the case of Gompf v. Wolfinger does not apply and that the amendment of April 25, 1904, makes proper the joinder which was improper under the law of April 4, 1902.

Wm. F. Chambers, for plaintiff.

E. R. Donohue, contra.


text:
    ASSISTANT MATRON NOT AN OFFICER.
    [Circuit Court of Hamilton County.]
    Lillie D. Jameson v. The City of Cincinnati.
    Decided, November 15, 1905.

      Office and Officer — Assistant Matron of a Worlchouse — An Employe, not an Officer — Discretion of Board in Removal of — No Right of Bearing in Defense.

    1. An assistant matron of a workhouse is an employe and not an officer, and on sufficient proof of misconduct or neglect may be removed by the board in control, without being accorded an opportunity of meeting her accusers face to face or of making a defense:
    .2. In the absence of specific allegations of corruption or of abuse of discretion, the determination of the board in such a matter is conclusive.
    Jelke, P. J.; Swing, J., and Giffen, J., concur.
   This ease comes into this court on a proceeding in error to the judgment of the court of common pleas sustaining a general demurrer to plaintiff’s petition, on the ground that the same did not state facts sufficient in law to constitute a cause of action.

For the purposes of this ease, we will assume the constitutionality of the board of police commissioners as created and empowered under Sections 2096®, 2098 and 2049, Revised Statutes, Bates’ Edition, 1902, although these sections have been declared unconstitutional by the Supreme Court, have been repealed by the Legislature, and superseded by the new Municipal Code. Revised Statutes, Section 2096®, provides:

“ [Board of Workhouse Directors Abolished, Where, etc.] In cities of the first grade of the first class the powers and duties of the bóard .of work house directors shall be exercised and performed by the board of police commissioners of such cities and the board of work house directors of such cities is hereby abolished, and 'said board of police commissioners shall be taken and held ito be the successor thereof. The members of said board of police commissioners shall each receive, in .addition to the compensation already fixed- by law, the sum of five hundred ($500) dollars per annum, for the additional services hereby required.1 ’

Section 2098, Revised Statutes, provides:

“The board shall have the same powers, perform the same duties, -and be governed by the same regulations, so far as applicable, in the maintenance, erection, or enlargement of any buildings or shops for work house purposes, or in making any .addition thereto, or in the improvement or management of the grounds therewith connected, and in the management of the affairs thereof, .and care of the convicts therein, as are conferred upon .and required of the board of directors of houses of refuge and correction, as provided in subdivision one of this chapter; and the powers and duties of the council in respect to such board shall be the same, iso far as applicable, as are provided in said subdivision. ’ ’

And Section 2049, Revised Statutes.:

“[Removal of Officers.] The board may, for misconduct or willful neglect of duty, and upon sufficient proof thereof, remove any officer or employe of the institution, except the superintendent thereof, who. shall be removed for causes and in the manner provided for the removal of city officers; -and any employe of the superintendent may be discharged at his discretion; but no officer shall be removed by the board until he has had an opportunity to be heard in his defense.”

Plaintiff’s petition alleges that—

“On or about the first day of May, 1902, she was- duly appointed by the Board of Police Commissioners of the City of Cincinnati, acting as a board of directors of the city work house of said city as an officer, to-wit, assistant matron of said city work house, for the period of one year from said first day of May, A. D., 1902, at a salary of fifty dollars per month, payable semi-annually, and that she has- been paid for her said services to the 20th day of June, A. D., 1902. Plaintiff further states that on said June 20, 1902, the said board of police commissioners by a pretended proceeding on its part removed plaintiff from her position as assistant matron of said city work house, but that said removal is illegal and void for the following reasons :
“1. Plaintiff was not given an opportunity to be heard in her defense.
“2. There were no charges against plaintiff and she had no notice of any charges against her.
“3. There were no charges, sufficient in their nature, if established, to justify her removal.
‘ ‘ 4. Plaintiff was denied the right to be represented by counsel.
“5. Plaintiff was denied the right to meet her accusers and ■ the witnesses face to face, and she was denied the right to cross-examine them.
“6. Plaintiff was denied the right to call witnesses in her own defense.”

Revised Statutes, Section 2049, manifestly provides a different treatment and procedure in the removal of officers and employes., and the question arises whether or not plaintiff below was an officer or an employe. To call her an officer, as done in the petition, is a conclusion of law. She actually was an assistant matron, and in determining whether or not an assistant matron was an officer, all we have to look to is the petition and the law. We are of the opinion that an assistant matron was an employe, and not an officer. Being an employe, the board could for misconduct or neglect of duty, on sufficient proof thereof, remove her. Whether or not prior to such removal she is to be accorded a formal hearing, is determined by the last sentence of Section 2049, which provides that “no officer shall be removed by the board until he has had an opportunity to be heard in his defense. ’ ’ The expression as to an officer excludes an employe from such provision. If then the board has removed an employe, we are bound to assume that it was for miseouduefc or willful neglect of duty, and upon proof thereof sufficient in the judgment and discretion of such board. If the plaintiff below were an employe, she was not entitled as a matter of right under the provision of the law to be heard in her defense, neither was it necessary that formal charges be preferred against her and that she receive a formal notice thereof. The sufficiency of the charges and the proof is addressed to the judgment 'and discretion of the board, and in the absence of specific allegations of abuse of discretion or corruption, their determination of the matter is conclusive.

Benner & Benn'er, for plaintiff.

Chas. J. Sunt, City Solicitor, contra.

Plaintiff below, as a matter of law, did not have the right to be represented by counsel, or to meet her accusers, if any, face to face, and to cross-examine them. Neither was the board bound to accord her the privilege of calling witnesses in her defense. It is true the petition alleges she was employed for one year; but her contract of employment was. subject to and must have read into it the provision of the law, viz., Revised Statutes, Section 2049.

We think the court below did right in sustaining the demurrer and the judgment herein will be affirmed.


text:
    PROOF IN ATTACHMENT AS TO INTENT TO DEFRAUD.
    [Circuit Court of Hamilton County.]
    The American Engineering Specialty Company v. Delia O’Brien; and Crane-Hawley Company v. Thomas J. Conner et al.
    Decided, July 8, 1905.

      Attachment — Intent to Defraud — Must he Clearly Shown — Error— Weight of Evidence — Affidavit—Burden of Proof.

    To sustain an attachment on the ground of fraud, actual intent to defraud must be clearly shown.
    Jelke, P. J.; Gieeen, J., and Swing, J., concur.
   Error is prosecuted to this court to an order of the court of common pleas vacating and discharging an attachment. The affidavit for attachment charges:

“* * * that the defendants, and each of them, have assigned and disposed of a part of their property with intent to defraud their creditors; that they are about to convert a part of their property into money, for the purpose of placing it beyond the reach of their creditors, and have converted a part of their property into money, for the purpose of placing it beyond the reach of their creditors,” etc.

Rogers Wright and John B-. O’Neal, for plaintiffs in error.

Aaron A. Ferris and W. B. Morrow, for defendants in error.

The issue made and tried below is a determination of the question: Did Delia O’Brien and Patrick O’Brien dispose of any of the -property of the firm of John O’Brien & Company with intent to defraud the creditors of said firm?

To sustain an attachment actual intent to defraud must be clearly shown. Constructive fraud, and even such evidence of fraud as might justify setting aside a conveyance, have been held not sufficient to sustain an attachment. Remembering this rule, and the rule that a reviewing court will not disturb the finding of the trial court unless its decision is manifestly against the weight of the evidence, we are of opinion that the record in these cases does not require or justify a reversal.

We think the opinion of the trial court (2 N. P. — N. S., 550), on the evidence is a correct view of the facts in these cases.

Judgment will be affirmed.


text:
    RECOVERY OF COMPENSATION BY ARBITRATORS.
    [Circuit Court of Lucas County.]
    Lem P. Harris v. C. Rudolph Brand.
    Decided, October 14, 1905.

      Arbitrators — Not Parties to the Contract of Submission — Form of Action by, to Recover Compensation — Necessary Parties — Liability, Joint and Several — Promise to a Second Parly for the Benefit of a Third Party — May be Enforced by the Third Party — Implied Assumpsit — Award as to Costs.

    1. Arbitrators are not parties to a contract of submission and can not sue upon it, but where both parties to the submission requested that the service be rendered, and the arbitrators are entitled, as in the case at bar, to compensation for the services rendered, the parties to the submission are jointly and severally liable therefor, and an action will lie where brought by one of the arbitrators against one of the parties for such compensation.

      2. Where one of the parties to an arbitration has paid his share of its costs, such payment may be a full and effectual discharge under Sections 3162 and 3166, Revised Statutes, of such party, and him only, of and from all and every liability to the arbitrators for whose benefit the payment was made.
    Wildman, J.; Parker, J., and Haynes, J., concur.
   This is said to be one of three actions which involve substantially the same questions now pending in this court upon petitions in error. Only one of the cases, however, has been submitted to us, and whether there are any points of difference which might involve separate hearings, we are not advised.

The plaintiff in error with Arthur L. Mills and Thomas F. Whittlesey were appointed and acted as arbitrators to determine certain disputes' existing between the defendant in error and the Toledo, St. Louis & Western Railroad Company, under and in pursuance of an agreement set. forth in the pleadings in the ease below. The court below, upon the motion of the defendant, entered judgment in the defendant’s favor. Lem P. Harris, as I have said, was one of the three arbitrators chosen in the dispute between Brand and the railroad company, and, after the rendition -of certain services by the arbitrators in the carrying out of the duties placed upon them by the arbitration agreement and their acceptance of it, Harm brought suit against Brand for compensation as such arbitrator, and to arrive at the precise point upon which the case was disposed of in the court below, reference may be had to the docket entry, which is recited in the brief of one of the counsel, and which explains the reason of the court for the ruling made:

“Submitted upon motion by defendant for a judgment on the pleadings.
“The precise question involved w,as decided in Bates v. Townley, 2 Exe., 164. Arbitrators are not parties to the contract of submission, and can not sue upon it. They are entitled to compensation for services rendered, and both parties to the contract having jointly requested the same, both jointly and not severally are liable therefor. Petition dismissed at costs of plaintiff. Plaintiff excepts.”

This naturally invites an examination of the case to which reference is made by the trial judge in 2d Exchequer. The case did not arise in precisely the same form as that presented by the case at bar. It was not a suit, as finally presented, by the arbitrator for compensation, but one of the parties to the agreement for arbitration, having made, as he claimed, a payment of the other party’s share of the compensation to the arbitrators, indeed claiming that he had paid the entire compensation, sought to recover in the way of contribution, one half of the amount which he had paid. It was claimed in the case that the arbitrators had not acted strictly in accordance with the requirements of the contract of submission. Two arbitrators were named in the contract, and they were authorized to select a third arbitrator and endorse the fact of his appointment upon the contract of arbitration. This they failed in part to do. They proceeded with the reference and -appointed a third arbitrator, but his -appointment was not endorsed upon the submission, as required by the contract. Subsequently the three arbitrators made their award, whereby they found that there was due from the defendants to the plaintiff the sum of over

two thousand pounds, which they directed that the defendants should pay to the plaintiff; and they did further award:

“That the cost -of the reference and award, including compensation to the arbitrators, should be borne as follows: that is to say, one moiety thereof by the plaintiff, -and the other moiety by the defendants. On the 22d -of February the plaintiff took up the award and paid the whole costs of it, amounting to 25£ 8s 9d and on the following day served defendants with notice thereof, but there was-no express request to pay.”

That is, the plaintiff paid it without being requested so to do by the defendants.

“The plaintiff now sought to recover 12£ 14s 9d, the moiety of those costs, as money paid for the defendants’ use. The declaration contained a count on the award, which had been demurred to, and judgment given for the defendants (1 Exeh., 572), so the plaintiff now relied upon the award itself as evidence of an account stated. On the part of the defendants, it was objected that the plaintiff was not entitled to recover the moiety of the costs as money paid for the defendants’ use, on the ground, first, that the award was not binding, the appointment of the third arbitrator not having been endorsed on the submission; secondly, that the costs of the reference were not ascertained, either by the award or by the taxation of the court. ’ ’

A careful examination of the case discloses that this latter clause is made a-n element in the final adjudication by the court.

The court avoids any decision as to whether the three arbitrators should be joined; but does hold that the plaintiff who paid the entire -amount of the award might have been compelled to do so by reason of the fact that'his obligation was joint with that of the other party to the award. It will be noticed that the court does not hold that the arbitrators might not also at their option, have the right to sue either of the parties to the award severally. We might tarry for a moment and -consider the fact that we have three kinds of obligations- upon contracts— the obligations may be joint, or may be several, or they may be joint -and several. Now while that court held that this obligation was joint, so that the arbitrators might have sued all of the parties to the award together, they did not hold that the arbitrators might not, in their discretion, have sued them severally; nothing is said upon that subject. It is .held that the contract is joint, but it is not held, and it was not necessary to hold that it might not also be several. The liability of one of the parties of the award to be sued and required to pay the entire compensation might be a justification for his paying it in its entirety and then suing the other party who had contracted with him for contribution. That is .about all that the court here was compelled to hold upon this point, but the case finally went off on another point. The result would be the same whether the obligation was joint or whether it was joint and several.

“The first point to be considered is, whether both the parties were jointly liable to the arbitrators to pay them for their trouble. This depends upon the question, whether the arbitrators were parties to the submission, and agreed to pay on the terms contained in it only. If they were, then they had a remedy only against each for the ' part which they by their award should direct each to pay, and so this action could not be maintained. ’ ’

That would be true if the contract was several, not joint. Then if one of the parties paid that part which the arbitrators decreed should be paid by the other, he would be a mere volunteer and he could not recover the amount so. paid.

We are not satisfied that the precise point presented in the case before us was decided by this case of Bales v. Townley, ■as the judge below seemed to. understand it. It is true that the English court did hold as the court below does hold that arbitrators are not parties to a contract of submission and can not sue upon it; but the court does not discuss the question as to whether in considering the rights of arbitrators, if they had brought suit they would or would not have been entitled to sue the contracting parties severally instead of jointly. They are only holding in substance that they had a right to'sue them jointly; that the parties had jointly bound themselves.

In the 3d Cyclopaedia of Law and Procedure, at page 726, under the head of “Implied Assumpsit Will Lie,” I find this language;

‘1 Inasmuch as the arbitrators are to be regarded as acting for all of the parties, the liability is joint and several, and an action of implied assumpsit may be maintained, either jointly or severally against one or all of the parties.”

A number of eases are cited under this paragraph, and we have examined them all with care. We are not entirely satisfied that this general statement in the text is borne out by the authorities cited, and we are inclined to look a little further into the condition of our Ohio law to determine whether or not one of the arbtrators can sue one of the parties to an agreement for an arbitration without joining the other. There seems to be no question in the contention of the parties that the arbitrators would be entitled to compensation, if they performed the duty placed upon them by the agreement of the parties. The court below in this, docket entry says they are entitled to compensation for services rendered, and we believe that is correctly stated, if they rendered the services, and it is of no consequence whether the parties are satisfied or are not satisfied as to the conclusions arrived at by the persons to ■ whom the contractors submitted their matters of difference.

In Lawson on Contracts, Sec. 113, this rule is stated:

It is a principle of the common law that one can not acquire rights under a contract to which he is not a party, and hence no right to enforce a contract is.given to a person not a party to it or the assignee of such party.

“In the code states, the .statutory provision that every action must be prosecuted in the name of the real party in interest, gives the party for whose benefit a contract is made the right of action. And even independent of the codes, the modern American rule is that when a person makes a promise to another for the benefit of a third person, the latter may maintain an action upon it.”

I think no principle has been more firmly settled in Ohio than the one embodied in this last clause that “where a person makes •a promise to another for the benefit of a third person, the latter may maintain an action upon it. ’ ’

Perhaps it is not necessary to cite authorities, but in passing it may be well to remind ourselves of some of them: 1 Bates on Pleading, 1; Crumbaugh v. Kugler, 3 O. S., 544; Thompson v. Thompson, 4 O. S., 333; Emmitt v. Brophy, 42 O. S., 82; Irwin v. Lombard Univ., 56 O. S., 9-21.

Indeed the authorities are numerous that recognize in one form or another this principle: If A' promises B that he will pay something to C, not only may B have the right to insist upon a fulfillment of the obligation, but C also may take advantage of it, although no consideration moved from him.

This must be treated as a common law arbitration. Brand asserts in one of his pleadings that by a supplemental contract it was agreed that the award of the arbitrators should be made a rule of court; but that supplemental contract was denied in the reply of Harris, and, as the court rendered judgment on a motion upon the pleadings, it can not be taken as conceded that the parties entered into any such agreement. It was not disputed and so was to be taken by the court as conclusively shown by the pleadings that they entered into the original contract for arbitration, and that contract did not provide for any order of court. It provided only that the award should take the place of proceedings in court, and that the ease in the court should be dismissed. Perhaps I had better read the language of the contract, not only in this connection, but as bearing upon another matter to which I am about to come. In the answer of Brand this agreement for arbitration is copied; it reads as follows:

“Agreement made this thirty-first day of July, 1903, between Toledo, St. Louis & Western Railroad Company hereinafter called the first party, of the first part, and C. Rudolph Brand, hereinafter called the party of the second part.
“Whereas, in an action now pending in the Common Pleas Court of Lucas County, Ohio, and entitled C. Rudolph Brand v. Samuel Hunt, Receiver of the Toledo, St. Louis & Kansas City Railroad Company, et al, defendants, the second party claims the sum of seventy-eight hundred dollars ($7,800) as rental for the alleged use 'by the first party and its predecessors in title, of a certain sidetrack, the property of the second party, and leading from the main line .of the first party to a certain quarry owned by the second party near Neowash, Lucas county, Ohio, from the year 1893 to the date of the commencement of said action on June 23d, 1900.
“And Whereas, said second party in said action further claims the sum of four thousand dollars ($4,000) as compensation for damages alleged to have been caused to said track by the first party and its predecessors in title in the use thereof, all of which more, particularly appears in the second amended petition in said action filed.
“And Whereas, the parties have agreed to submit the questions arising in said action to arbitration,- subject to the limitations and conditions hereinafter contained,
“Now, Therefore, It Is Hereby Agreed that the disputes and differences between the parties as in the said second amended petition set forth, but subject to the limitations, hereinafter contained, shall be referred, and the same are hereby referred to the arbitration and determination of Lem P. Harris, of Toledo, Ohio, and A. L. Mills, of Toledo-, Ohio, arbitrators nominated by the said parties respectively, or in case they shall not agree in making an 'award, then as regards the matter or matters to which they shall disagree, to the umpirage of such persons as the said arbitrators shall in writing, before they enter upon the said arbitration, appoint, and that the questions to be determined by said arbitrators shall be as follows:
“1. Whether or not the said ‘track as used by said first party, or its predecessors in title, between April 10th, 1896, and June 23d, 1900, was damaged by the improper use thereof as in said second amended petition alleged, and if so, what compensation, if any, said second party is entitled to for damages?
“The said arbitrators shall not take into consideration any use -of or damage to said track occurring prior to the 10th day of April, 1896, or subsequent to the 23d day of June, 1900.
“The said arbitrators shall make and .publish their award in writing and deliver the same to- the parties -on or before the --day of--next, or -on or before such subsequent date to which the said parties shall in writing extend the time for making said award.
“The said action pending between the parties aforesaid shall be continued and all proceedings therein stayed, and upon the making -of said award said action shall be dismissed and the costs thereof together with the expenses and co-sts of this reference awarded by said -arbitrators in their discretion to either or both of the parties- thereto.
“The award therein shall be binding upon the parties and the said parties thereto agree each to the other, that he -will not' 'bring or prosecute any action in any court against the other, or against the arbitrators or either of them, concerning the matters in difference, or any of them, and that the award of the arbitrators shall be a bar to the prosecution of the aforesaid action now pending between the parties, or to any other action for compensation for the use of, or damage to the said track which otherwise might or could hereafter be commenced by them.
“In Witness Whereof, the said Toledo, St. Louis & Western Railroad Company has hereunto caused its corporate name to be subscribed and the said C. Rudolph Brand has hereunto subscribed his name on the day and year first above written.
‘1 Toledo, St. Louis & Western Railroad Company,
“By Benj. Norton, President.
“Witness the signature of Toledo, St. Louis & Western Railroad Company:
“E. S. Worthem,
“C. Rudolph Brand.
“Chas. A. Sci-imettau.
“C. Rudolpi-i Brand.
1 ‘ Witness the signature of C. Rudolph Brand:
“L. W. Ishmund,
“L. A. Sibdel.-”

It may be said that the defendant in answer claims that the arbitrators failed to make all the findings referred to in this agreement for arbitration; but the issue thereby tendered is met in the reply of the plaintiff which denies the allegation that they failed to do these various duties devolving upon them by the arbitration, so that for the purpose of this inquiry, this issue being made, the court would not be justified in finding that the arbitrators had failed to perform the services.

We are inclined to think and to hold, that the principle which has obtained in Ohio that where one person makes a promise to another for the benefit of a third, that such third person may maintain an action upon the promise applied to the agreement between these persons to the extent that it contemplates a compensation to the arbitrators, that they would be bound by any such award as the arbitrators might make as to the expenses and. costs of the reference, and -that the arbitrators might award these expenses and costs in their discretion to either or both of the parties hereto.

The petition of the plaintiff below alleged that by the award made by the arbitrators, they found and determined that “the defendant and said railroad company should each pay the costs of witnesses by them respectively called in said arbitration proceedings, but that all other costs and expenses should be equally divided between them; that the costs of said arbitration proceedings were thereby fixed at six hundred dollars, two hundred dollars to each arbitrator; that the services of the plaintiff as arbitrator in said arbitration proceedings were reasonably worth the sum of $200; that this defendant has not paid, and refuses to pay his share of said $200, to-wit, $100, or any part thereof, although often requested by plaintiff so to do” — one hundred dollars being the amount sued for.

We think under all these circumstances, in view of the claim of the plaintiff that the services had been performed, that the services were worth the amount charged; that the arbitrators in their award had fixed the share that each one of the agreed parties should pay, and in view also of the general principlesi to which I have referred, that the defendant was not entitled to a judgment upon the papers upon his motion therefor.

There is another matter which was suggested in argument, and I think without dispute, although I have been unable to find it in the pleadings; and that is that the railroad company-had paid to the arbitrators its proportion of the expenses, including the compensation of the arbitrators. If this had appeared upon the pleadings it might present still another interesting question. As the casé is likely to go back to the court of common pleas for further consideration, I simply call at tention -to that matter by way of suggestion to counsel.

Section 3162 of the Revised Statutes provides as follows:

“When a partnership is dissolved by mutual consent or otherwise, any partner may make a separate composition or compromise with -any creditor of the partnership; and such composition or compromise shall be a full and effectual discharge to the debtor Avho makes the same, and to him only, of and from all and every liability to the creditor with whom the same is made, according to- the terms thereof. ’ ’

King & Tracy and TL. W. Lloyd, for plaintiff in error.

Seney, Johnson & Seney, for defendant in error.

Section 3166 provides;

“The above provisions in reference to partners shall extend to other joint debtors, who may, individually, compound or compromise for their joint indebtedness, with the like effect in reference to creditors and to joint debtors of the individual so compromising, as is above provided in reference to partners.”

Under all the circumstances, we feel that the judgment of the court below should be reversed and the case remanded for further proceedings..


text:
    CONTRACT FOR. SALE OF REAL ESTATE.
    [Circuit Court of Knox County.]
    A. L. White v. The C. & G. Cooper Co.

    Decided, March, 1903.

      Corporations — Contract for Sale of Stoclc — To he Paid, for Out of Dividends and Earnings — And from Other Sources at Option of Buyer —Not Void for Want of Mutuality — And is a Valid Sale.

    C agreed in writing to sell and transfer to W at their face value 150 shares, of $100 each, of the capital stock of a corporation of which he was a member, and owner of the shares, for the consideration of $15,000 to be paid with interest at 3 per cent, per annum, payable annually from March 1, 1895, from and out of the dividends and earnings of said stock, as the same were realized; W to have the right to make payments from other sources as he might see fit.
    Said stock was to be issued in the name of W, and he to immediately, by endorsement, transfer it to C as security for the payment of said $15,000 and interest, W having the right and option to redeem the stock as fast as he would make payments upon principal and interest to the amount of $500 or any multiple thereof, and have possession of a corresponding amount of stock.
    Under the agreement 150 shares of stock were issued in the name of W and delivered to him, and by him endorsed and delivered to C, who received the annual dividends and credited them as payments on the stock. W attended meetings of stockholders and directors, and voteU the 150 shares of stock with the knowledge and without objection from C. Four years after the agreement was made and performed as above shown, C notified W and the company in writing of his rescission of said agreement, W not consenting thereto. Held:

    1st. Such contract is not void for want of consideration or lack of mutuality.
    2d. The facts and circumstances above stated show an executed contract, and could not be rescinded at the option of one of the parties without the other’s consent.
    3d. A sale of stock in a corporation as above found is a valid sale, and vests the purchaser with a good title to said stock.
    Voorhees, J.; Donahue, J., and McCarty, J., concur.

       Affirmed by Supreme Court and on rehearing reaffirmed (72 O. S., 615 and 691.)

   Appeal from the Court of Common Pleas of Knox County, Ohio.

Plaintiff’s action against the defendant company is to recover ■the sum of $1,800, dividends due him for the years 1899 and. 1900, declared by the company on 150 shares of capital stock in said company owned by him.

Defendant filed an interpleader alleging that one Charles Cooper, in his lifetime, claimed to be the owner of said 150 shares of stock, and the dividends thereon belonged to him, and not to the plaintiff; and since his (Cooper’s) death, his executors claim the stock and the dividends.

Cooper’s executors appeared in said action and filed their answer setting up two defenses: 1st. A denial of plaintiff’s title or ownership of said stock and of his right to 'the dividends, alleging that Cooper, their testator, in his lifetime, and they, as his executors, were the owners of the 150 shares of stock and were entitled -to the dividends; and also a second defense, that the only claim plaintiff has to said stock arises out of a contract made by him with said Charles Cooper, in his lifetime, which contract is made part of said second 'defense, and is in words and figures following, to-wit:

“Mount Vernon, Ohio, February 26,1895.
“This memorandum agreement witnesseth, that Charles Cooper, of Mount Vernon, Ohio-, upon the consideration hereinafter named, hereby sells and -agrees to transfer and convey to A. L. White, of the same place, -one hundred an-d fifty shares of one hundred dollars -each -of the capital stock of the C. & G. Cooper Company, a corporation, for the -consideration -of fifteen thousand dollars ($15,000) to him to be paid by the said A. L. White, together with interest thereon at the rate of three per cent, per -annum from the first day -of March, 1895, payable annually.
“The said fifteen thousand dollars ($15,000), with interest thereon as aforesaid, is to be paid by the said White to the said Cooper, his heirs -or assigns, from and out -of the dividends and earning® -of said stock as fast as the same is realized; that is, all the dividends and earnings -of said stock as fast a® realized is to be -applied, first, to the payment -of the interest upon said $15,000, or the unpaid portion thereof, and second, to- the payment of the principal thereof until -the whole has been fully paid; th-e said White having the right h-o-wever to mak-e payments from other sources as rapidly as he may see fit.
“Said stock shall be issued in the name of said White in blocks of five or ten shares at -the option of said White, and shall immediately be -assigned and transferred by a proper assignment in writing to the said Cooper, endorsed upon said certificate, and said certificate shall at th-e same time be delivered to the said Cooper as surety for the payment of said sum with interest as aforesaid. It is agreed, however, that as fast -as the said White makes payment upon the principal of said debt (after having paid all interest upon the whole), amounting to $500 or any multiple thereof, he shall have the right and -option to redeem -and have possession of a corresponding amount of said stock.
“(Signed) C. Cooper,
“A. L. White.”

The executors further allege that said contract i-s without consideration; that the plaintiff did not pay -or agree to- p.ay anything for the stock, and the dividends belong to them as such executors.

It is further -alleged that Cooper in his lifetime intended to and did rescind -such contract; that notice in writing of the rescission and intention to rescind was served upon plaintiff, Wh-ite, also upon the company. The -executors ask that the petition be dismissed; that the defendant company be ordered to transfer to them said 150 shares of stock, and pay to them the dividends that may be thereafter declared.

To this answer or cross-petition -the plaintiff answers. He admits the contract and the notice of intention to rescind and denies all other allegations of the cross-petition, and by way of affimative allegations, in substance, says: That at the time

of the transfer of-said stock to him, he was superintendent of the defendant company’s shops located at Mount Vernon, Ohio, and had been since 1888; that he had been in the employ of the C. Cooper Company, prior to its incorporation, in various capacities since 1875; when it was re-organized into- a corporation in 1895, he was one of the incorporators, holding -one share of the stock; that in consideration of these facts, and for his long services to the company, and for services to be rendered, and as an inducement to make him personally interested in the success of the company, Charles Cooper sold, assigned, and transferred the stock in question to him, and upon the terms set out in said written contract; that thereupon the stock, 150 shares, was transferred to him on the books of the company, known as block numbered three, and was assigned to him in his name; that in pursuance of the agreement, -the stock was immediately assigned and delivered to Cooper, .as collateral security for the payment of the stock, and the interest, and is still held by the executors as such collateral security. He, plaintiff, was after-wards elected one of the directors; that he was recognized as a stockholder; voted -the 150 shares of stock with the knowledge and without objection from Mr. Cooper; that he received the dividends which were endorsed upon the contract and receipted for'by1 Mr. Cooper as payments on the stock and interest as per the terms of said written contract".

The executors by a reply put in issue the affirmative allegations of plaintiff’s answer.

The cause comes to this court on -appeal from the common pleas and is submitted on the pleadings and evidence.

The plaintiff’s right to recover is denied on two grounds:

1st. Want of consideration,

2d. The contract is an executory one; Cooper could at his option, and in fact did, rescind the same.

Upon the issues presented, we find from the testimony and exhibits the following facts:

Prior to January 15, 1895, the C. & Gr. Cooper Company was a co-partnership of which Mr. Cooper was a member; the plaintiff became an employe of the company as early as 1875, when he was about 14 years of age, first as an. office and errand boy, and remained in its employ until 1895, when the partnership was merged into a corporation under the laws of West Virginia; Mr. Charles Cooper subscribed for and became the owner of 613 shares of the capital stock; one share of stock stood in the name of the plaintiff, A. L. White. The first meeting of stockholders under the new organization was held February 21, 1895. On February 25, 1895, Mr. Charles Cooper and Mr. A. L. White made the contract in question; they were and had been on friendly and intimate terms from 1875. Mr. White had occupied various positions from office boy to superintendent, continuing as an employe until 1900. Mr. Cooper was at the works every day or substantially so, and while not looking into the books or details of the business, he took an active part about the shops until a short time before 'his death.

At the organization of the corporation Mr. White was elected a director, and continued in office until he left the company in 1900. He attended the meetings of the directors and stockholders, voting the 150 shares of stock at the meetings where Mr. Cooper as the president of the company was present taking part in the proceedings.

No certificates of stock were actually issued to the stockholders until September, 1895, on the 27th of that month, the certificate for 150 shares was issued to White, and he receipted for the same on the stub.

The transaction briefly stated as to the issuing of this certificate as given in the testimony of Mr. Kirk is this: The certificate was filled out in the name of Mr. White and delivered to him with an indorsement thereon signed by Mr. White as follows:

"These shares of stock are delivered to Charles Cooper to be held as a collateral to a contract made by Charles Cooper and A. L. White dated February 25th, 1895, and are to be so held until the provisions of said contract are fully carried out. Dated September 28, 1895.”

Immediately thereafter the certificate of stock was delivered to Mr. Cooper by White.

Thereafter annual dividends were declared on the stock. The dividends were credited to Mr. White and then turned over to Mr. Cooper. After the dividends were so declared and delivered to Mr. Cooper he endorsed upon the contract the credits, one of such endorsements will be sufficient for the purposes of this opinion, which reads as follows:

"Received of A. L. White $450, being interest $375 up to July 21, 1896, and $75 to apply on principal this February 4th, 1896.
"(Signed) C. Cooper.”

It is claimed that by reason of the written rescission of the contract by Mr. Cooper, the contract was rescinded and this stock reverted back to Mr. Cooper.

From these facts it is contended by the executors of Charles Cooper’s estate:

1st. That the contract of February 26, 1895, is not a valid binding contract on the part of Mr. Cooper in favor of the plaintiff, for the reason that it is without consideration; that White does not bind himself or promise to. do anything; that the offer of Mr. Cooper made to transfer the stock was a mere gratuity, or a mere option to Mr. White; that if he should comply with the contract, and no change or withdrawal of the option by Mr. Cooper before complied1 with by White, the stock would belong to him; that it was at best an executory contract, and being without consideration could at any time Mr. Cooper saw proper be rescinded.

Is the contract without consideration?

Business relations and circumstances as they existed between these parties at the time the contract was entered into are material. Mr. White had been in the employ of the company before it was incorporated for many year's; he was a skilled employe; and when the company reorganized he was induced to take one share of stock, in order to become an incorporator, and to secure his personal interest and concern in the enterprise, Mr. Cooper proposed to him to sell him 150 shares of the capital stock of the new company upon the terms and conditions set out in the written contract, which contract was fully complied with by both parties

Valuable consideration, in the sense of the law, may consist in some right, interest, profit, or benefit accruing to one party, or some forbearance, detriment, loss, or responsibility given, suffered, or undertaken by the other. Any. bona fide consideration, however slight, which works any benefit to the one party or any injury to the other is sufficient in which there is no element of fraud. These elements in a contract have been held sufficient to constitute a valuable consideration by our Supreme Court in Irwin, Admr., v. Lombard Unversity, 56 O. S., p. 9; Robinson v. Boyd, 60 O. S., p. 57; Dalrymple, Admr., v. Wyker, Admr., 60 O. S., p. 108.

Suppose there wa,s no valuable consideration for the transfer of this stock by Cooper to- 'White, how does it effect the transaction? If Mr. Cooper saw proper for reasons that were sufficient to him when this new organization was completed that he directed 150 shares of the capital stock held and owned by him should be issued in the name of White and delivered to-him and they were so issued and delivered and White accepted the same, and as a part of the transaction the contract in question was entered into, whereby from the profits he would get its value on this stock, ‘and further desiring to- help White, and to keep him with the company, secure his personal concern and interest in the enterprise, he, Cooper, was willing to enter into the contract and which contract was afterwards carried out, it would be a binding contract, one that he could not rescind at his pleasure or option.

Judge Swan, in his late treatise, at page 543, says:

“This rule should be noticed in relation to a promise without consideration; that although- no suit can be brought to em .-force its performance, yet if it is executed both parties are bound by it. Thus if you promise to give me a horse, or to work for me without compensation, I can not maintain an action against you for not fulfilling your promise, but if you deliver the gift it is mine, or if you do the work you can not recover from me any compensation.”

Mr. Cooper, for reasons of his own, was willing to have this stock issued in the name of A. L. White and delivered to him, White to transfer it back to him by endorsement so that he, Cooper, could hold it as security for the payment of the face value of the stock, with interest at three per cent.; both principal and interest to be paid from the profits or dividends arising from the success of the enterprise.

•Under these conditions Mr. Cooper agreed to sell and transfer 'to White 150 shares of stock. The stock was so issued and delivered to White, and by him transferred back to Cooper to be held as security, etc.

This company was a corporation; the corporation through its proper officers issued its stock; 150 shares was so issued and delivered to White-, he receipted for the same on- the stub of the stock book. Can there be any doubt but that this stock was actually delivered? We think not. Were the other conditions of the contract executed or carried out?

White, after receiving the certificate of stock, endorsed the same and delivered it to Mr. Cooper, who received it, and held it for several years, treating it as security as contemplated by the contract. It would be a misconception to say that it was held as security, and at the same time to be treated as belonging to Cooper and not to White. Security presupposes that the party who offers it for security is the owner; and the receiver is not the owner, but a mere holder, to secure conditions assumed by the real owner.

If this certificate had never been issued or delivered to White he would have no interest in it, and have no right at their stockholders’ or directors’ meetings to vote 150 shares of stock in their business transactions. He did so vote the shares; Mr. Cooper knew he was so doing. In recognizing these acts of White, Mr. Cooper was recognizing him as the owner of these shares, and the existence of and the validity- of the contract. He further recognized it by receiving the dividends and crediting White with them a's payments on the stock. Mr. Cooper did everything required of him under this contract. Same is true, as we find from the evidence, on the part of Mr. White. The transaction as a whole from first to last is consistent with this conclusion, that the contract was fully executed, on the respective parts of the parties to it, and therefore it was a valid contract between them, and Mr. Cooper could not without the consent of Mr. White rescind it.

Our conclusion is fully supported and in accord with thecas© of Dean v. Nelson, 10 Wallace, p. 158.

It was urged by counsel for the plaintiff, Dean, in the case cited, as it is contended in this case, that there- was no consideration whatever for the assignment of the stock from Pepper to Nelson, and citing in support of their contention Dorsey v. Packwood, 12 How. (U. S.), p. 126. The court in Dean v. Nelson, supra, in meeting this contention held—

“That Dean was concluded by the sale of the- stock; that had the contract been merely an agreement for the sale, under the terms on which the sale was made, and the action one for a specific performance, the.case -could hardly be distinguished from Dorsey v. Packwood. But the court say, where the sale was actually m-ad-e and the stock was actually transferred to Nelson, that in the absence of fraud it became absolutely his.”

In Dorsey v. Packwood, supra, an agreement whereby the purchaser of a plantation bound himself to transfer to -his son-in-law -one-half of the plantation, slaves-, cattle -and stock as soon 'as this son-in-law should pay one-half of the cost of said property, -either with his own private means, or with one-half of the profits of the plantation, th-e court held the contract lacked mutuality. The son-in-law was not bound to render any service nor pay any money. It was a nudum pactum. There was no conveyance made; the promisor did nothing, only give his promise. Mr. Cooper did mofe than'give his promise to sell this stock; he caused the stock to be issued to White and delivered but received it again by endorsement, and held it as security for the payment of the price for which he sold Uie stock.

Louis B. Houck,'F. V. Owen and Charles E. Burr, for plaintiff.

Kelley & Follett, Mclntire & Mclritire, Weight & Moore, and J. W. Warrmgton, for defendant.

Under the facts and the law, we think 'this stock belongs to Mr. White, and Mr. Cooper could not rescind the contract without White’s consent.

Under the contract White is not entitled to receive or collect the dividends and appropriate them to any other use than payment of the interest and the balance-to be applied on the principal, namely, the $15,000, until it is fully paid.

The decree will be drawn in accordance with this finding of law and facts.

Decree for plaintiff with costs.


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    BENEFICIARY UNDER LIFE INSURANCE POLICY WITHOUT AN INSURABLE INTEREST.
    [Circuit Court of Lawrence County.]
    David Evans v. J. W. Moore, as Administrator of Georgia Hamilton Moore.
    Decided, October, 1905.

      Life Insurance — Beneficiary Named in Policy of — Must have an Insurable Interest in Life of Insured — Assignment of Policy — Authorities in Conflict.

    The case of Balde v. Renner, 41 O. S., 232, though treated in the textbooks as authority for the assignment of a life insurance policy to a person having no insurable interest in the life of the insured, and often cited in support of that, proposition, is not decisive of that question; and the court in the present case, on reason, good conscience and public policy, and in view of the square conflict in the rulings of -the courts, in the various states, prefers to follow the federal courts and to hold that only those having an insurable interest in the life of the insured can. become beneficiaries under a policy either by assignment or otherwise.

      Walters, J.; Cherrington, J., and Jones, J., concur.
   The case of David H. Evans v. J. W. Moore, as administrator of Georgia Hamilton Moore is in this court on petition in error. In 1899, Georgia Hamilton, being then single and a resident of this county and a young lady about twenty-one years of age, took out three several policies of insurance upon her life, in what is known as the- industrial companies. On November 2, 1902, she was married to the now defendant in error, J. W. Moore. On April 24, 1903, she executed what purported to be an assignment or substitution of the beneficiaries named in the policy, by which assignment or substitution she named the plaintiff in error, David H. Evans. And such assignment or substitution of the beneficiary was addressed to the company and signed by her and witnesses, providing that in the ease of her death before the said David H. Evans, that the money should be paid upon these policies to the said Evans. In October, 1904, Mrs. Moore died. Before her death, however, she instituted a suit in replevin to recover the possession of the policies named,' claiming that she was the owner of the same and therefore entitled to the possession. The case was tried after her death, the administrator being substituted in her person and stead; and, a jury having been waived, the case was submitted to the court below upon all the evidence and the exhibits, the court finding judgment for the plaintiff below. Error is prosecuted from that judgment. There are a number of errors assigned, only a few of which are relied upon.

In the first place it is claimed by the defendant in error that the plaintiff in error, David H. Evans, having no insurable interest in the life of Georgia Hamilton, that she could not make him a beneficiary, either by assignment or otherwise. It is claimed, however, on behalf of the defendant in error, that the Supreme Court of Ohio has, decided that question.

There is a straight and square- conflict in the authorities in the courts of-the various states as to whether or not a person not having an insurable interest in the life of the insured can take and accept, by assignment of or original policy taken out in the first place.upon the life of the insured — that no person except those who are related by blood or affinity or who are the creditors or the sureties of the insured and those having some insurable interest in the life of the person insured can take A transfer or assignment of the policy.

The largest number of the state courts of the Union (a collection of cases is made in Elliott on Insurance) seems to be in favor of the doctrine that a policy of life insurance is like any other chose in action, and may pass, by assignment, regardless of the insurable interest that the assignee may have in the life of the insured. The United States Supreme Court and the federal courts generally, and quite a number of state courts, hold to the other proposition and principle, that no person except those having insurable interest in the life of the insured can take such an assignment of a policy; that it is a wagering contract; that it is against public policy, and therefore void; that it stimulates and creates a desire on the part of the persons receiving the assignment that the death of the insured may be hastened. And it is set out by the authorities that claim the opposite doctrine that the persons who stand in the relation to the insured growing out of affinity or contingent affinity, blood, or a debtor or surety, have a tie that interests them in the continuation of the life of the insured; a sort of correlative proposition that offsets the interest or desire they may have to hasten the death of the insured.

It is claimed, however, that the Supreme Court of Ohio, in the case of Eckel v. Renner, 41 O. S., 232, decides this question in favor of the assignment of policies to those who have no insurable interest. It seems that, in this case, a gentleman took out a policy of insurance upon his own life, for his own benefit, and kept it alive by the due payment of premiums, for the sum of one thousand dollars. He had neither wife nor child, but became fond, 'it is said, of a child about nine years of age, the daughter of a friend of his, and that he assigned the policy to her and delivered the policy to her father for her. He subsequently died, during the minority of the child. It was held that one who has obtained a valid insurance -upon his own life, may dispose of it as he sees fit in -the absence of prohibitory legislation, or contract stipulation. It is immaterial, in such case, that the 'assignee has no insurable interest in the life.

It will be observed, by the facts already stated in this ease, that they contain no element of traffic or contract relation or burdens assumed on the part of the donee or transferree of this policy to the person whose life was insured; that the assignor paid all the premiums, both before and after the assignment, and delivered it to the father of the child; that the child was only nine years of age, and was, at the time, and perhaps during all the time of her minority and until the decease of the assignor, incapable of entertaining any desire for the death of the insured.

It will be further observed that no burden was cast upon the assignee, the child, or the father of the child, by way of the payment of premiums or any other thing to be performed. In other words, that it was purely and simply a gift from the insured, who had neither wife nor child, to this child that he had become fond of; that the paper policy evidencing the gift itself was delivered to the father, properly assigned, to be delivered to the child and for her. Therefore it would seem evident, from the facts in that case, that it was simply the execution by delivery of the gift of the policy; no one dependent upon the payment by the insured of all premiums thereafter; no burden cast upon the. assignee to do anything; no contract or arrangement. entered into by the insured 'and the assignee, the child, or the father for her, that he was to do any single thing by way of accepting and assuming any burdens in that relation.

Now, this case has often been cited by courts and by counsel in cases involving the delivery of gifts from donor to donee as showing when the delivery takes place, in fact, as often cited for that purpose as any other; while in the text-books on insurance it is cited as authority in Ohio for the proposition that one having no insurable interest may. take, by assignment, a policy of insurance. But it will be observed that the holding of the court goes beyond the facts in the case. It may be further observed-that the court in the case did not publish any syllabus to the case; and, as we all know, the syllabus contains the law of any case decided since, I believe, .the 5th Ohio Statutes. No syllabus appears in any published reports of this case. I have given, substantially, the whole of the case — a case of such importance that if the Supreme Court intended to lay down such an important rule in regard to the transfer of life insurance policies, it would seem that some consideration would have been given to the case; a fuller statement made; the syllabus would have been published and the authorities more or less reviewed. We must take all decisions of all courts as referring to particular facts that they have under consideration; and, as I have before related, the facts in this case did not warrant the court, nor perhaps did the court intend to lay down the general rule in regard to the transfer of life insurance policies. At least, the facts did not warrant it.

We are, therefore, of the opinion that SO' far as that case is concerned and the facts stated upon which the decision is based, it does not contain a statement of the law of Ohio on that subject. Being, therefore, without any recognized authority, as we view it, in' Ohio, in regard to the assignment of such policies to persons having no interest in the life of the insured, the matter rests with this court as an initial proposition. And, there being a conflict of authorities in the different states of the Union — a square conflict — in regard to it, we should be governed more by the reason and logic of the different propositions than by the decided cases, unless their reasons appeal to us. Therefore, it is not in the number of decided casees we must look to find the true principle which should govern, but rather to the right reason and the better reason and the better logic that underlies the truth to be decided. ,

As we said before, and as set out by Justice Field in deciding the case of Warnock v. Davis, reported in 104 U. S., 783, decided in 1882, persons who take out and who become the assignees of the policy of insurance upon the life of another in whose life they have no interest, no interest by blood, love, nat-' ural affection, by debt created, or a surety or liability incurred which would offset the desire on the part of the assignee to hasten the death of the insured, rest their interest upon nothing but a speculative or wagering basis,

Take the facts in this case. The plaintiff in error, Mr. Evans, according to his own statement, was to receive these policies., and to receive them upon this condition: That he was to pay the premiums on the policies during her life and, at her death, he was to bury her and disinter the bodies of her mother and sister and brother I believe, who were buried in the old Kelly cemetery, and transfer them to the new cemetery. There was a direct contract — the contract that he was to have these policies after those expenses were paid out of the policies.

All in excess of the money that he paid out, or that he would have paid out after the death of the insured, Georgia Hamilton Moore, in burying her and removing the bodies of her mother and other members of her family — the balance was to be his. Now, as Justice Field says, all over and above this actual outlay rested in — What? A pure speculation, a wagering, if you please, upon her death. No tie of relationship, no blood, no natural love or affection, no debt, no surety upon which she was bound for her debt, no obligation in the world rested upon •him, outside of the premiums that he might pay and these other debts' for the transferring of the bodies and her burial; and as to what was . over and above that, it was simply speculative and wagering, depending upon her death, and he, Evans, would have a direct interest in hastening her death. As in other cases just like this, we have the same spectacle in the court here of a woman insured, in failing health, for some time before she died afflicted with consumption, all parties and she herself knowing that it was only a question of a short time when she must die; and then we have the unseemly spectacle that we have had in this, case in this court, of a fight before the death of the insured for the money.

Now, to prevent such things as that, to prevent this speculation, this w-aigering, the healthy rule, as we think, has been adopted by the United States Supreme Court and the federal courts, by which they say that a person having no. insurable interest, a stranger to the blood, to whom no debt is owing by the insured, no surety or other contract obligation by the assignep for the insured by which to' offset the desire on the part of the transferree to hasten the death of the insured — that under such circumstances it seems to us that, the better rule, the rule of public policy, the rule which would forbid and shut out just such cases as the one we have now before us, is the wise and beneficent rule based upon principles of public policy. That no person should be allowed to speculate or wager upon the death of another, and then do those things or create a desire in the breast of the assignee of the person insured where he would reap the direct money value should death be brought about.

Now, it is useless for us to go over the authorities. May and Elliott on Insurance both lay down both principles and give the authorities and states that hold them, and it would be useless for us. to go over the authorities pro and con. They come down simply to the one simple, naked proposition. It is said by counsel that the case of Eckel v. Renner has become the rule, as it were, in regard to life insurance policies in Ohio., and that they have since that case was decided been transferred ad libitum, the same as any other chose in action is assigned and transferred; and that it would interfere with the 'business and commercial trade that has already been instituted, and the business relations of the people between the insured.and the assignee, or those holding policies would be disturbed. We can not hold to that view for the reason that the view we do hold makes, safe and sound and whole any person who has advanced money under circumstances like this in regard, to policies, and that he must be paid his. advancement, together with six per cent, interest. And certainly if those advancing or trading in policies get back what they have paid, with the usual interest, they can not complain and would be protected.

Now, it is hardly necessary for the court to go into an examination of this record, but we will examine one or two exceptions, briefly. Mr. 0’Shaughnessy was called as a witness for defendant. On page twenty-nine of the record he was asked tliis question: “I will ask you if Mr. Hamilton said anything with reference to the change of beneficiary 'and transfer of the policies? What did he say?” Objection was made by the defendant and the objection sustained. Counsel for defendant .stated that they expected wjtngsg tq state that Mp, Hamilton, beneficiary under one of the policies, was present and consented to the change, and stated that he had been advising his daughter to make the change. He was then asked, substantially, the same question; to which he testified that Mr. Hamilton said he had been advising his daughter to turn them over to Mr. Evans; it was the 'best thing she could do, for he couldn’t help her and ■the boy couldn’t help her, and he knew that Evans would treat them right. The question that was answered was, substantially, the one that the court ruled out.

On page thirty-one, on re-direct examination, the same witness was asked: “I will ask you if in that conversation Mr. Hamilton made this statement, in answer to a question from me, whether he knew what the agreement was between Georgia and Evans: ‘It was the understanding that he was to pay the doctor bill and the funeral expenses, and buy a lot in Woodland and also give me money to raise my people in Kelly’s graveyard —five up there.’ Did you hear him make that statement?” ■Objection by defendant and objection sustained. Then the following question: “I will ask you if you heard him say in that same conversation, in answer to this question: ‘You never heard the agreement between Georgia and Dice?’ If he said, ‘I heard it talked over in the house frequently.’ ” And then this question was asked him: “ ‘What do you say it was?’ And did he say, ‘lie was to pay the doctor bill. You expect a person to be sick before they die. And give her a first-class funeral; buy a lot in Woodland and raise my family or give me money to raise my family and take them to Woodland. Three boys; small fellows.’ Did he say that?” And the answer was “Yes, sir; he did.” That is substantially the same quqestion as before, the same purport and meaning; and no substantial prejudice could arise.

This question was asked of Mary Barron: ‘ ''State to the court what that conversation was.” (This is a conversation she had with the deceased.) “A. I asked her if her being married now would make any difference with these policies, and she said ‘No, she didn’t think so.’ ” This answer, on motion of plaintiff, was excluded. That, it appears to the court, was not substantially evidence, but simply an opinion that she expressed, that she didn’t think her marriage would have anything to do with the policies.

On page fifty-seven Mrs. Mayne testified that Mr. Moore came to her house and they -had a conversation something like this: 1 ‘ He came to my house and told me' his reasons for coming. I says ‘I can’t go and testify a thing in your favor.’ And he says ‘you can swear I was good to my wife,’ and I says., ‘Yes, I can; but that has nothing to do with Evans carrying this insurance long before you knew that family.’ I says, ‘You was only married to her such a few months, why do you want what is rightfully Mr. Evans ’ ? ’ And he says, ‘ I took out insurance for my wife after I married her. That is why I want her insurance. ’ That’s just the conversation we had.”

Now, that did not bear upon any issue in the ease. It was simply a conversation as to what she knew; and nothing was expressed in the conversation of any material value, reflecting upon the issues in the case.

On page fifty-eight, the funeral director was called and asked whether or not Evans had come to make any arrangements, after the death of Mrs. Moore, as to her funeral, and the court excluded it. There was no contest, so far as tthe issues in this case are concerned, as to the fact that Evans was ready and willing to perform his part of the contract. No issue was made as to that anywhere in the evidence; and the evidence being objected to and then offered on the part of Evans again when Evans testified, was then excluded by a remark of the court that it didn’t make any difference, it seems to us it would not; because, by the objection, the defendant himself would be es-topped from afterwards, claiming that no effort was made on the part >of Evans to carry out his promise to bury the deceased.

Now, there has been a great deal of argument here as to the question whether or not this judgment was against the manifest weight of the evidence. As to that, we have but little to say. We might go over all this evidence in detail, and at the same time would not express our opinion upon the subject any clearer than to say we have listened patiently and have read considerable of the testimony outside of that read by the attorneys, in our consultation. The whole case of the plaintiff below rested upon the testimony of Mr. Hamilton, the old gentleman. His testimony is. indefinite as to the time the conversation took place or' wher.e it took place; but he does say that he heard it, and that Evans agreed with his daughter at that time that he would take the policies, and he was to bury her and take up the bodies of his wife and three little children from the old Kelly cemetery and remove them; and she had the right to have the policies returned at any time during her life, upon her demand, and upon her paying to him what he had expended, together with eight per cent, interest.

If the old gentleman is to be believed, this would probably make out the case. But, as .opposed to this is the declaration, or the declarations,, of the deceased, Georgia Hamilton, as to what the contract was.; the testimony of Mr. Evans as to what it was; and the larger number of witnesses who testified by way of contradiction to Mr. Hamilton and what Mr. Hamilton said, up in the office of Mr. Belcher, where he made no such claim as that the policies were to be returned to her in her lifetime, upon her demand, and that she was to pay Evans what he had paid out, together with eight per cent, interest. No' mention was made of that in any conversation detailed by any witness with Mr. Hamilton; but he always stopped short of that and said that he was to pay the funeral expenses and to disinter the bodies of his wife 'and children and to pay her doctor bill.

It devolved upon the plaintiff below to make out his case by preponderance of the evidence; and if 'we were deciding the ease, we would have to say it was manifestly against tbe weight of the evidence and would so do. But for the ruling of the court upon the proposition of the law. the case would be reversed. As it is, the case will be affirmed.


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    EPILEPSY AS A RESULT OF INJURIES.
    [Circuit Court of Lorain County.]
    The Cleveland & Southwestern Traction Company v. Harry Hamner.
    Decided, October 6, 1905.

      Damages — For Personal Injuries — Epilepsy as an Element — What the Jury Must Find — Charge of Court.

    In a suit for damages for personal injuries, there can be no recovery on account of epilepsy from which the patient claims to he suffering, but no mention of which is made in the petition, unless the jury find that epilepsy is a natural and ordinary result of the injuries averred, and also that the epilepsy, if any, from which plaintiff suffers is a result of the injuries sustained.
    Henry, J.; Winch, J., and Marvin, J., concur.
   This is a personal injury damage case. Hamner was a passenger and hurt in a collision. He recovered a large judgment which the traction company here seeks to reverse. We shall discuss only one or two of the assignments of error, the others being in our opinion clearly unfounded.

It is complained that although epilepsy was not mentioned in the petition’s recital of Hamner’s injuries, evidence thereof ■ was admitted, and the jury under the charge was permitted to consider it as an element of damages, and that, too, whether they found that it was the actual result, or merely a natural and probable consequence, of the initial injury.

Of course, the petition’s enumeration of consequential injuries must be held to be exclusive of any and every such injury that is not a natural and probable result of those expressly mentioned.

Whether epilepsy was such a natural and probable result, was, therefore, a preliminary question for the jury under the evidence rightly admitted in that behalf.

In case they found epilepsy to be an ordinary consequence of the injuries averred, they should have been directed to find whether the plaintiff’s 'epilepsy, if any, did in fact result from any of the injuries mentioned in his petition and actually suffered by him.

W. W. Boynton -and G. W. Gollister, for plaintiff in error. ■

'Skiles, Green & Skiles and Lee Stroup, for defendant in error.

Instead of thus marshaling these propositions in due subordination, the court charged that they were alternative conditions of recovery, for epilepsy as an element of plaintiff’s damages, saying in substance that plaintiff might recover therefor if it were either the actual result, or merely a natural and probable consequence.

I quote from page 31 of the bill of exceptions the court’s charge on this point:

“If you find that the plaintiff has the disease of epilepsy, I say to you, that the defendant is not liable therefor, unless you find that such disease is the direct result of the injury received by plaintiff, or is a probable and natural consequence of the injury caused to plaintiff by defendant’s negligence, and one which, according to common experience and the usual course of events, might reasonably have been anticipated. And-if, on this subject the evidence is so evenly balanced that you are unable to say what the truth is in that behalf, or iE you find that said disease was not the direct result-of said injury and was not a probable and natural consequence of such injury, and one which, according to common experience and the usual course of events might reasonably have been anticipated, then the plaintiff has failed to sustain the burden which the law requires, and you should not allow damages for the plaintiff having such disease, if you find he has such disease.
“But, if you find plaintiff has such disease, and that it is the direct result of the injuries received by the plaintiff, or that it ‘is a probable or natural consequence of injuries received by plaintiff in said collision, aod one which, according to common experience and the usual course of events might reasonably have been anticipated, then you should consider this fact in assessing damages. ’ ’

The jury was thus erroneously permitted to award plaintiff damages for epilepsy, even though they should find that it was not an actual consequence of the .accident.

F-or this error in charging the jury the judgment is reversed and the cause remanded.