author: Laubie, J.

text:
    PURCHASE MONEY LOANED TO JOINT PURCHASER.
    Circuit Court of Cuyahoga County.
    Charles M. Allen v. Emma H. Alsop et al.
    Decided, February, 1899.

      Equitable Liens — Joint Purchaser Loaning Purchase Money to Co-Purchaser Has no Lien on that Share.

    While it is true that the payment of an excess of purchase money in a joint purchase is sufficient -to create an equity in the nature of a trust in favor of the paying purchaser against the other share, such is not the case where the purchaser does not pay the purchase money hut loans it to the joint purchaser to be used by him in paying for his share.

      T. W. Bhreve, for plaintiff.

      Tuttle é; Tillius, contra.
   Laubie, J.

(sitting in place of Marvin, J.); Caldwell, J., and Hale, J., concur.

This was a proceeding for the partition of premises consisting of a house and lot in Cleveland, between the representatives of two deceased owners, a brother and a sister, in each of whom, at their deaths, was the legal title to one-half, in fee. The property had been conveyed to the two some twenty-five years before upon a joint purchase, after an agreement therefor, and after making another brother, residing in Cleveland, an agent for the purpose, the funds to be furnished by the brother, one-half on his own account, the sister promising to repay her brother the other half during her life, so far as she might be able without inconvenience to herself, and that the balance should be paid from her estate at her death. The purchase was made to furnish joint homes for this sister and brother and another sister and the husband of the latter during their lives, if the latter sister should choose to occupy so long, but subject to termination of her rights by her abandonment. Soon after the conveyance and after a limited reimbursement of the brother, writings were executed in which the terms of the undertaking was in part recited and in part formally promised and in which the transaction of furnishing so-much of the money as was left unpaid was mentioned as “loaned or advanced” to the sister to enable her to pay off her half of the purchase money. The brother had lived for many years in Pittsburgh where he carried* on extensive business in which he was engaged until he died some two years before the sister. The sister continued to occupy the premises until her death but the other had abandoned it several years before.

The sum paid was $32,500. For this sum the brother bought in Pittsburgh, New York exchange payable to his own order and sent it to the brother in Cleveland, endorsed payable to his order, and with these funds the brother paid the purchase price including as part of it the removal of an incumbrance of more than $20,000.

At the time of the purchase the brother had in his hands $2,500 of his sister’s funds which was applied as of that date on her share of the price and sometime afterwards she caused a further sum of $3,500 to be paid, making in all $6,000 reimbursed by her. No other sum was ever paid on the sum advanced, but during her life the brother released all interest accrued or after-wards during her life to accrue.

The representatives of the sister brought the suit and made the devisees and executors of the brother defendants. It was agreed that the property could not be divided and must be sold. The executors of the brother claimed a lien on the' sister’s share of the proceeds for the unpaid portion of the price.

There is in this case but one point in issue between the parties, or at least, there is but one point which should determine the ease against the executors of Hussey and that point is, whether or not the executors of Curtis Gr. Hussey have a lien in equity on the property in question. It is claimed that they have, by reason of the fact that Mr. Hussey and his sister Mrs. Terrill bought the property together, and that Mr. Hussey paid more than his proportion of the purchase money.

That is the question in dispute; whether he did pay more than his proportion, more than his half of the purchase money, or not.

In the elaborate brief filed by counsel for the executors, this is stated as being a principle of equity upon which the executors rely for the purpose of establishing this lien or trust:

“It has long been a recognized principle of equity in the English law that the payment of an excess of purchase money in a joint purchase is sufficient to create an equity in the nature of a trust in favor of the paying purchaser against the other share. It was long ago held sufficient to take away the right of survivor-ship in what would otherwise be a joint tenancy. ’ ’

Such was held in Lake v. Gibson, 1 Equity Cases Abridged, 290, 291; 2 Ves., Senior, 256.

Among the earliest cases I have found directly on the point in this country, is that of Warfield v. Banks, 11 Grill & John. Rep., 98; The case was one of partition between parties claiming and considered as tenants in common. The second point of the syllabus in that case is as follows:

“When one of the several joint purchasers of land pays more than his due proportion of the purchase money and the land is afterwards sold for the purpose of distribution, the party making the excessive payment is entitled to be paid and the net balance only is to be distributed among the joint purchasers.”

There is no question whatever so far as the principle of equity is concerned, and no difference in regard thereto, between the English authorities and the American, that where the joint purchaser pays more than his share of the purchase money, and the title is taken in both or to all the joint purchasers, the title is held in trust for him who pays the most, to the extent of the excess which he has paid over and above his share of the purchase money.

Now, perhaps, the very statement that I have made is sufficient, but to make it more explicit, it is and has been always asserted that this payment must have been in. the character of purchaser, that he, as purchaser, paid more of the purchase money than wás requisite to entitle him to the share agreed upon by the contract made between them. In other words, it must have been his money, and that is the only question here.

I do not understand there is any dispute between counsel as to the law or principle of equity, which requires that it shall have been payment of or by one of the joint purchasers — payment by him — of his money. And the only point really in dispute is as to the facts in the case ;■ whether the money in the instance given was the money of the decedent, Curtis G-. Hussey, at the time of payment, or the money of his sister, Jane R. Pettit.

The purchase price money was $32,500, and each party was to pay one-half. Mrs. Pettit was not able to pay more than $6,000, and the $10,500 remaining to complete her share of the purchase money was furnished by the decedent, Mr. Hussey. It seems that he, having a relative in this city, forwarded the money in the shape of drafts to his relative, a brother, and in doing this, he made and caused to be sent a separate draft for the $10,500 which he was advancing of the purchase money as and for Mrs. Pettit’s share; if he was advancing it in the character of purchaser or was paying it in the character of purchaser as part of the purchase money to the seller, then, un-, doubtedly, he was entitled to this lien.

One thing to strike us at the very threshold of the case is, why he should make the distinction and send forward two drafts instead of one — -why he should send forward in one draft especially the amount for which Mrs. Pettit was in default.

It is all explained — by the contract — if not presented by written contract, then subsequently by the parties. And I have that original contract before us. It recites the fact of this purchase, and then proceeds as follows:

‘ ‘ And whereas said Curtis Gr. Hussey and Jane R. Pettit were, according to an understanding between themselves, each to pay the sum of sixteen thousand two hundred and fifty dollars, making in the aggregate the said sum of thirty-two thousand and five hundred dollars, and each were and are entitled to a one-half undivided interest in the fee simple of. in and to said house and lot; and whereas said Jane R. Pettit was unable to pay more than six thousand dollars on account of her portion of the purchase money, without embarrassment to herself, therefore said Curtis G-. Iiussey, at the request of said Jane R. Pettit, loaned or advanced to said Jane R. Pettit the sum of ten thousand two hundred and fifty dollars to enable said Jane R. Pettit to pay off her share, the one-half of said purchase money of said house and lot.”

Now, the language of the contract is in the past tense and it refers to the original contract and understanding between these parties in the purchase;, what their agreement was when they made the verbal agreement which now has been reduced to writing, referring back to the time when they made the purchase, that instead of Mr. Hussey paying an excess of the purchase money to the seller over and above his own share, he was loaning and advancing money to Jane R. Pettit, at her request to enable her to pay off her share of the purchase price. So that there can be no dispute but what it was a loan from Mr. Hussey' to his sister, Mrs. Pettit, to the amount of ten thousand two hundred and fifty dollars, and that is the reason why he sent it to his brother, his agent here, who was attending to the matter.

This contract, which can not be disputed and which can not be misinterpreted and about which there can be no doubt, differed from the oral testimony where the memory of witnesses may be so mistaken as to pervert the facts. Here it is in writing, about which there can be no misinterpretation or doubt, and it was, that Mr. Hussey was loaning and advancing to Mrs. Pettit the money to enable her to pay for her share precisely as if she borrowed it from a perfect stranger to the transaction.

This is a complete statement of the whole case and ends it.

The authorities state explicitly that where money is loaned by one joint purchaser to another or to the other joint purchaser to enable him to pay his share of the purchase price, no trust arises. It is not a payment in excess on the share of the joint purchaser; it is merely a loan to the joint purchaser to enable him to pay off his share.

All the other papers in the ease, and this contract itself, and subsequent parts of it, seem to recognize the fact that the parties themselves never contemplated that Mr. Hussey should have a lien upon the premises for this ten thousand two hundred and fifty dollars, but it expressly provides that M'rs. Pettit may pay the amount to him at such time and in such sums as she may be able to, and that, at her death, it shall be payable out of her estate; and two bonds were given; one corresponding with the date of this contract; the last bond that was given to take the place of the first, provides especially for the delay of payment until the death of Mrs. Pettit, when the amount is to be payable out of her estate; the first bond of October 1, 1870, refers to the contract itself and provides that the money shall be paid as specified in this contract.

The principle of equity to which I have referred has settled the case; there can be no lien because it was not Mr. Hussey’s money that was paid, but it was Mrs. Pettit’s, for which she was indebted to Mr. Hussey.

The decree in this case will be the same as entered in the court below.


source: Caselaw Access Project

license: Public Domain

text:
    LIABILITY FOR RENT WHERE PREMISES BECOME UNINHABITABLE THROUGH NATURAL DECAY.
    Circuit Court of Cuyahoga County.
    George V. Muth v. Fanny Wrubel.
    Decided, April 1, 1899.

      Landlord and Tenant — Tenant Liable for Sent When Premises Become Uninhabitable Through Gradual Decay — Trial—Charge to Jury.

    1. Section 4113, Revised Statutes, is for the relief of ignorant and indifferent lessees who fail to protect themselves through a special provision in their lease, and does not relieve the lessee from liability for rent, where the premises become uninhabitable through gradual decay resulting from the ordinary action of natural or human agencies.
    2. It is not error to charge the jury that defendant had repudiated his contract, where he had refused to perform his contract and claimed that through the operation of law the contract was no longer in effect.

      Kerruish, Chapman & Kerruish, for plaintiff in error.

      Bwrton \&'■ {Drake, contra.
    Marvin, J.; Caldwell, J., concurs; Hale, J., not sitting.
   This is a proceeding in error seeking to reverse the judgment of the court below in an action wherein Fannie Wrubel brought suit against George V. Muth to recover for the breach of a contract which she says was originally entered into between herself and a man by the name of Acnovitch.

Fannie Wrubel was the owner of certain property on Lorain street in the city of Cleveland. She entered into a written contract of lease with Acnovitch, by which he was to have the property for the period of five years, beginning on the 1st of September, 1891. The lease had the ordinary clauses and terms and in addition it had a clause that all repairs upon the property should be made by the lessee. The rent was four hundred and eighty dollars per year, to be paid the first day of every month— forty dollars per month.

The lease was acknowledged by Fannie Wrubel before a proper officer. On the back of that lease Mnth made this endorsement:

“I hereby guarantee the payment of the rent within stipulated, for the-entire time of the lease and further guarantee the performance on the part of the lessee, his heirs and assigns, of all the conditions herein expressed.
“But it is expressly understood that if the said Abe Aenovitch fails or should violate the obligation of this lease or if the said lessee, Aenovitch, fails to sell other beer than the goods produced by Geo. V. Muth, as long as the same is marketable, then this lease shall be null and void and the said Geo. V. Muth shall have full control of the same, otherwise it shall be in full force. ’ ’

This case was in this court once before and it was then said and agreed, and is now, that the words here used in this endorsement do not express what was intended by the parties. The evidence shows that Muth was operating a brewery; that the place leased was a place where brewers’ goods were sold, and that what Muth meant to provide here was, that if Aenovitch failed to sell the goods manufactured by Muth the lease would be null and void, and Muth could become the lessee. So that this endorsement is to be treated as though it expressed an agreement that if Aenovitch forfeited his rights, then Muth became lessee; and when Aenovitch failed to sell goods manufactured by Muth and whenever he failed to perform the conditions on his part to be performed, he, as lessee, would lose his rights under the lease.

The petition sets forth that Aenovitch, having occupied the premises for a time, gave up the possession to Muth and Muth took possession and kept possession for a time, and then repudiated the contract. Then Wruble sought to recover damages by reason of such repudiation, and recovery was had in the action. The defense was that Muth was justified in refusing to go on under the lease, by reason of the fact'that the premises were utterly unfit for occupancy or use; that at the time notice was served, to-wit, on the 29th day of October, 1892, this house was then in an utterly ruinous, dilapidated and uninhabitable condition; that it was entirely unfit for any person to live in; that the sides had bulged out; that it had sagged down in places and was in a falling condition, and was not only unfit to live in, but it was dangerous for any person to remain in it; that a hole beneath it, which many years before was a cellar, had been filled with ashes; that there was no sewerage; that the house had sunk down upon one side; that the floors were rotten and utterly worthless, with great holes through them, and that the partition had fallen down inside, and that it was in a rotten and utterly worthless condition, and in such a condition that the only advisable thing to do with it was to tear it down or to set fire to it; that it was incapable of repairing.

He sets up further that he gave notice to Wruble that he abandoned the premises because of this condition of the property, and delivered up the possession and gave the key to her, and that she accepted the possession.

On the trial of the action it was sought on the part of the defendant to prove that these premises were uninhabitable and unfit for occupancy, not by reason of any destruction of the elements, by fire or hurricane or the like, but, as set out in the answer, that they became uninhabitable.

Relief is sought by reason of Section 4113 of the Revised Statutes, which reads':

“The lessee of any building which, without any fault or neglect on his part, is destroyed or so injured by the elements, or other cause, as to be unfit for occupancy, shall not be liable for the payment of rent to the lessor or owner thereof, after such destruction or injury, unless otherwise expressly provided by written agreement or covenant; and the lessee shall thereupon surrender possession of the premises so leased.”

In the case of Hilliard v. The New York & Cleveland Gas Coal Co., 41 O. S., 662, this statute was construed, and on page 669 the court uses this language:

“The evident design-of the act was to relieve the ignorant and indifferent who might fail to protect themselves by special provision in their lease, against the evil and mischief of the common law, which held the tenant liable for rent although the demised premises were destroyed by fire, flood, tempest or otherwise, unless he was exempt from liability by some express covenant in his lease.
“The destruction or injury, within the purview of the statute, is not that gradual decay which results from the ordinary action of the elements nor injury resulting from, the ordinary action of human agencies, which a lessee is supposed to have in view when he enters into his contract. The statute is designed rather to protect the lessee against an unexpected and unusual action of the elements or of human forces, causing a total destruction of the demised premises or an injury thereto only short of a total destruction, which the parties ignorantly or inadvertently failed to anticipate and provide against when the demise was made.” ■ . . . ■

.And the court then quotes from a decision in the state of New York under a similar statute, Suydam v. Jackson, 54. N. Y., 450.

The defendant below attempted to show, not that there had been a destruction by the elements, but that by reason of faulty construction and the ravages of time the building had become uninhabitable and unfit for occupancy. Clearly that was not, in the language of the Supreme Court, an “unexpected and unusual action of the elements or of human forces.”

A large part of the objections to the admission of evidence on the part of the defendant below is disposed of by this construction of the statute. Quite a number of witnesses were offered on the part of the defendant below, to show how badly decayed this property was because of the ravages of time, and, perhaps, of mis-use by prior tenants.

This the court refused, and properly refused, unless we misconstrue the statute.

It was proposed to introduce in evidence a certain notice that was not properly identified. As we understand the statute that would not have availed him. _ Acnovitch occupied this property some time after the> lease was made; he thereafter left the occupancy of it, and others went into the occupancy; rent money was paid to Mrs. Wrubel by Muth during the occupancy of other tenants, or part of the time; Muth says he got this money from other tenants and paid it over to her. Mrs. Wrubel testifies that she had a conversation with Muth after Acnovitch had left. This is what she says

‘ ‘ I went to Mr. Muth and I told him Acnovitch sold- out the place to Mr. Rock, and he said ‘No, I am the lease-holder, and I keep this place; I take possession of the place. You are satisfied, Mrs. Wrubel?’ ‘Yes, when I would not be satisfied, I would take Gehring or Sclather ’ He says ‘You will find out what kind of a tenant I am. You will never have your place in such a condition as it is now. You don’t need to come after the rent every month. You get your rent.’ And Mr. Muth done so for twelve months, a whole year.”

Mrs. Wrubel is nowhere contradicted as to what she said that Mr. Muth said to her. Muth did not deny that he told Mrs. Wrubel, the owner of the premises, that he had become the lessee of the premises.

It is urged on the part of the defendant, that this endorsement was made long after the lease and that it was made without any consideration. As we look at the ease it is indifferent whether it was made at the time of the execution of the lease or later.

One, other thing is said on the part of the defendant below, that is, that this lease was not acknowledged by any one. Really, the statute does not require any one to acknowledge a lease. The lessee does not acknowledge it. The statute expressly provides that it must be acknowledged before an officer, where the lease is for a given period of time. But there is a condition expressed in this endorsement of guarantee, a consideration, to-wit, that the beer manufactured by Muth shall be the only beer sold in this place of business. Muth was given that consideration, the selling of his beer; but he told Mrs. Wrubel, so she testifies, when he took possession, that he'was the lessee; he paid the rent to her thereafter, and nobody denies it. So we think the date of the endorsement is a matter of indifference.

It is complained that the. court erred in its charge to the jury, to the prejudice of the plaintiff in error, in that he said to the jury that there was an acknowledgment on the part of Muth that he received a consideration. The court did not mean to say, or at least we would not be justified in understanding the court to use the word “consideration.” But Mfath, not only by his endoresement, but by his testimony upon the stand, shows that he made that endorsement; that he made it that he might be insured that his beer should be sold at this place of business, and the court meant that that acknowledgment of that fact showed his consideration. We think the court was right about it.

It is urged that the court erred in charging as follows:

“It is alleged that on or about October 29th, 1892, the defend- and repudiated this contract and denied any and all liability thereon, and refused to perform the terms and conditions of the same. And this is admitted by the defendant. ’ ’

This is excepted to. It is said that he did not admit all that; that he did not repudiate the contract. It is urged on the part of the plaintiff in error, that he said, “By reason of the laivs of Ohio, there is no longer a contract between us, which I am bound to perform. ’ ’ But he says he refused to be bound by the contract; that he insisted he was no longer bound by the contract —and that that makes all there is of this charge. There is no error to his prejudice in that.

The court, in its charge, further says, and it is complained of:

“The measure of damages is the difference between what was agreed to be paid per month for these premises, which was guaranteed by the defendant, and the amount which the plaintiff received from the premises after the breach of October 29th, 1892. When the breach occurred, when the defendant repudiated any further liability under this agreement, then it was the duty of the plaintiff and she .had a right to rent the premises and to see that it was kept remunerative, and to reduce — as far as the reasonable exercise of prudence on her part would — the damages which would flow by reason of his breach of the contract. She says she did that, by renting the property. ’ ’

It is said that the court states that the defendant had repudiated the contract. The court was justified in saying this by the defendant’s own testimony; by his own showing he says he repudiated it. He. did not claim that he was any longer bound by it; he claimed it was no longer habitable; he did not claim it was injured by the elements or injured in any other way than might naturally and properly be expected by the ravages of time, and it had probably become unfit for use for those very reasons.

The plaintiff helow, as a matter of fact, did lease the premises and get what rent she could out of it, and, before terminating the lease of the grantee, she sold'the property, and the court limited her recovery of damages resulting from ..the repudiation of the contract to tbe time prior to and ending with the time she sold the property, and also reduced the amount by the difference she had been able to get out of the property after the discontinuance on the part of Mr. Muth to pay any rent.

We think the charge was clearly the law, and that the ruling on evidence was the proper ruling.

There was an agreement as to what should be paid. Unless the defendant was justified in giving up this property, then that agreed price between them was a matter to be taken into consideration' in determining the damages. That, the court instructed the jury, should be done.

We think the judgment was right .and there was no error in the proceedings.


text:
    SUITABILITY OF DRAW BRIDGE OVER NAVIGABLE STREAM.
    Circuit Court of Ashtabula County.
    State of Ohio, ex rel Russell C. Humphrey, v. The Lake Shore & Michigan Southern Railway Company.
    Decided, March 23, 1901.

      Bridges — Waters—Hand Draw in Bridge Over Navigable Stream Not Reasonable — Jurisdiction— State Courts Have Jurisdiction Over Navigable Waters Entirely Within State — Suitability of Draw a Question for the Court.

    1. A draw bridge which is operated by hand and which requires the efforts of thirty men to move it, resulting in long delays for vessels seeking to pass it, is not a compliance with a decree ordering the construction of a “suitable” draw bridge at that point.
    2. Until the United States assumes jurisdiction over navigable waters wholly within a state, the state has jurisdiction over them and the state courts may make and enforce decrees regarding the use of them.
    3. The fact that plans for a draw bridge were approved by the Secretary of War and by the state board of public works, does not prevent the court from requiring a different motive power from that supplied, where the plans submitted and approved did not disclose the motive power for moving the draw.
    4. The "suitability of a draw in a bridge over a navigable stream is for the court to determine.

      Goulder & Holding and Burlón & Dake, for plaintiff.

      Brewer, Cook & McGowan and Judge Green, contra.
    Caldwell, J.; Hale, J., and Marvin J., concur.
   An action was brought in this court by the plaintiff against the defendant to require the defendant to remove a bridge that it had and was occupying over the navigable waters at Ashtabula Harbor.

In that case the question was tried as to whether the waters were navigable or not and to what extent. This court decreed in that case that the waters were navigable above the bridge and that the bridge interfered with the navigation of waters, and ordered the bridge to be removed and left it to the option of the railway company to either build its bridge above the naviga-. ble waters of the river or to build where the one then existing was, with a suitable draw in the bridge. That case was carried to the Supreme Court of this state by the defendant, in which court this court was affirmed, and the defendant then carried the case to the Supreme Court of the United States, where the courts of this state were affirmed.

The railroad company thereafter proceeded to build the bridge in question. The evidence shows that they found a bridge that had been constructed for other parties and for a different place, and bought that bridge; that the bridge was 360 feet long and, by putting the pier on one side of the channel, it left an arm to be operated over the channel of the river substantially 180 feet long. While it seems to us that that length of bridge was entirely unnecessary for this place and especially for the present uses, yet we are not called upon to condemn the same for that reason, nor could we do so, for the railroad company had a right to anticipate a growth of business and future conditions of the harbor.

This action is now brought by way of proceedings in contempt against the railroad company for having at Ashtabula Harbor a bridge with a draw that can not be operated by the means employed by the railroad, without much interference with vessels passing through the same, and much injury to those abutting upon the navigable waters of the stream .above the bridge; and it is sought iu this proceeding to have the court take such measures as to carry out the purpose and intent of the decree that was entered in the former action, and compel thé railroad company to comply with the intent and purpose of that decree.

Before the railroad company built the bridge in question, it submitted plans of the bridge to the Secretary of War, which plans he approved; and it submitted also to the board of public works of 'the state of Ohio the same plans, which plans were approved by that board. It is contended by the defendant that, having built according to the plans submitted to the Secretary of War and the board of public works of Ohio, that the jurisdiction of this court to take such proceeding as-are asked for in this action, is entirely wanting. It is contended that the proceedings between the defendant and the board of public works was in form and was in fact a contract; that the board of public works representing the state of Ohio in matters of public improvements, it amounts to a contract between the state of Ohio and the defendant, which settles and determines the question now before the court, and, if it does not strictly comply with the decree made by this court, still it was a contract that the state had a right to make and if it did make it this court is without jurisdiction to proceed in the matter.

Various other questions are raised, which I will notice in their order.

In the first place, the defendant claims that it has furnished a proper and suitable draw.

This involves the question as to what is a proper and suitable draw. It may relate to the mechanical construction of the bridge itself; or that term may be used to include also the machinery and means of moving the bridge — of opening and closing the same. Certainly a bridge with the necessary structure, so far as the bridge, strictly speaking, is concerned, may have what may be called a suitable draw and yet be entirely useless as a draw bridge unless there is some means of opening and closing the same. A bridge of this size, 360 feet long, to be of any use at all, by way of keeping the channel over which it is built open for craft navigating the waters, must have some means of opening and closing the same.

The railroad company claims that it has furnished a bridge that, when swung, will eléar the channel of the stream, and a bridge with a draw which can be operated by the application of ordinary motive power of hand or otherwise; and that they have furnished a draw which can be opened within a reasonable time; and that, having submitted these plans to the Secretary of War and to the board of public works of the state of Ohio, it has fully complied with the requirement of the decree and of the requirements of the United States Government and of the state government.

The evidence shows that one man was 'kept upon the bridge as a draw-tender and a draw-watchman; that when a boat whistled for the bridge, it became his duty to go to where the section-men were working in the yards of the company, which yards extended from the bridge, one mile away, and secure the section-men for the purpose of opening the bridge; if the men happened to be near at hand, the time was shorter than when they were far away; sometimes they might be near enough to be called by the person on the bridge without his going out after them; but this method of operating the bridge caused delay at all times very unusual and unreasonable. The evidence shows that sometimes the bridge was not opened at all and boats were unable to pass through, and sometimes boats, tired of waiting, or unwilling to wait the length of time necessary to get the bridge open, turned about and went away. The evidence shows that the present mode, adopted for the last five years, of moving a bridge of this size, is by steam-power or by electricity, and not by hand; and the evidence shows that it would require a sixteen-horse-power engine to handle the bridge in proper manner, and that that size engine would be light for the work. The evidence shows that it would require at least thirty men to do the work with rapidity and certainty.

The evidence conclusively shows that the railroad company has at no time since it built the bridge used upon it the requisite power nor the facility in way of number of men, or .time of getting the men there, to make the bridge of any practical use to those desiring to use the riven’ above the bridge.

The only excuse the railroad makes for not using steam-power, or some other artificial power, for opening and closing the bridge, or the requisite number of men for doing it rapidly and easily, and for not having the men present at the bridge ready to open it at any time, is that the bridge is so seldom called for by-any boat, that it would be a needless expense upon the defendant and that the emergency of the case does not require it.

If the railroad company should' continue to operate the bridge as it has been doing, undoubtedly the demand for the bridge to swing would never be increased, for the delay is such that it is of no practical use to those desiring to use the waters above the bridge.

There is no material differences between this argument and the one that might have been used in the former suit. In the former suit it might have been said that whenever the relator and others owning property above the bridge, establish a business that demands a swing-bridge, then they would put one in.

The bridge, as it has been operated, practically prohibits business being introduced above the bridge; and it seems to us unreasonable and of no weight whatever for the railroad to say that when the relator and others establish business on the waters above the bridge, that calls for service, then they will give them that service, but that, until they have thus established business, the present service is all that is necessary; whereas, it is clear that with the present service there never will or can be a business of any -consequence established above the bridge and hence the relator and'others could never make any use of their property for which it is best adapted.

But it is said that these plans, having been submitted to the Secretary of War and the board of public improvements and and being approved, this court has no jurisdiction to now consider the sufficiency and adaptability of this bridge. The evidence in the case shows, however, that the mode and manner of opening and closing the bridge was never exhibited to those authorities by any drawings or in any other manner. The kind of machinery used to operate the draw was not submitted to them, nor was there submitted to them the kind and amount; of power tp be used.

But it is said that the decree pointed out nothing except a suitable bridge, and the decree not having declared what that suitable bridge should be, and it being shown that the bridge itself is suitable, that this court has now no authority to enforce any part of its decree because the decree has been wholly complied with.

If this proposition is true, then the railroad company might have built the bridge as it now is, without any machinery to open and close it; and without power to be used for that purpose, and it might be said that the decree had been wholly complied with, and yet the bridge, so completed, would be substantially the same kind of a bridge that the court required to be removed.

It is evident that the decree, when it says “suitable,” means a bridge complete in all its parts and one that has upon it the necessary equipment and machinery for opening and closing the same to traffic, as such bridges are usually opened and closed. If this decree, then, means what we think it does, then it is within the jurisdiction of this court, so far as the limits of the decree go, to not only enforce the building of the structure, but the equipping it for opening and closing within that reasonable time that is common in other bridges.

It is said that this is not the proper proceeding to take in this ease. That if any of the parties living south of the bridge have been injured by the way in which the bridge has been operated, their action is for damages; that we are not called upon by such parties to act except as they may call upon us through the state by means of the proper officer of the state.

The state is interested. It is a matter pertaining to the interests of the state; it is a matter directly over which the state has control; and besides, if it had been simply the individual, Mr. Humphrey, who was making this application, if he could make it at all, there would be open to him three remedies; he could proceed by way of indictment, or he could proceed by way of having the nuisance abated, or he could proceed for damages.

It has been held in this state and other places that under the facts and circumstances existing in this case, a proceeding by way of damages is inadequate. 23 O. S., 523. And we may cite many cases from other states.

There is a case in 44 O. S. which bears directly upon the question of when a party has an adequate remedy by way of damages and when he has not, which, we think, is applicable to the case before us.

If we had any authority to enter a decree in this case in the first place, and it has been established by the highest court in the land that we had, then we certainly have the authority to enforce that decree and can do it in an action of this kind, if we can do it at- all.

There is no proof in this ease, nor does such proof exist, that the United States has ever assumed jurisdiction over these waters by way of any legislation whatever, and it is the law that until it does, the state has entire, or at least concurrent, jurisdiction over the waters and her courts may proceed to decree in regard to the same and to the rights of parties therein. There has been nothing done, either by the general government or the state government since our decree, that in any way removes our jurisdiction over this matter. No legislation has been pointed out to us; nor, as far as we know, is there any legislation that in any way takes away the jurisdiction of the state courts over these waters. The mere approval of the plans of the bridge by the Secretary of War and the state board of improvements would not serve that purpose, nor is it intended to serve any such purpose. It is provided that such plans may be submitted to the Secretary of War, because at any time the United States may, through Congress, undertake to legislate over these particular waters, and to save parties who make improvements needless expense, it is proper and right that improvements be submitted to the Secretary of War.

The contract between the state and defendant shows on the face of it that the state did not intend to relieve the defendant from any duty resting upon it under the decree of this court. In fact, it shows to the contrary. As that contract requires of the defendant everything that we have construed the decree to require of the defendant, and if that contract were to be enforced it would have to be done through the courts, and if the decree is to be enforced that must be done through the court; so, certainly, the court has jurisdiction to determine this matter.

The defendant seems to have understood from the beginning that its method of operating the draw would be called in question ; it seems to have had a suspicion that the public would not be satisfied with the way in which it was operating the draw; and such appears to be the fact from the testimony which it undertook to preserve.

That testimony was kept and presented to this court by employees of the railroad company, at the suggestion of the officers of the company. It is not in harmony with the testimony of disinterested parties who saw this bridge move at different times. The testimony in this case shows clearly, or at least the weight of it is, that the operations of this bridge were much more unsatisfactory and much more tedious than would appear from the testimony of the defendant on that subject.

The means and force heretofore used on this bridge for opening and closing it, have been unreasonable and not such as the law requires the company to maintain; and they have been so unreasonable that they have made the time of passing the bridge so uncertain that no boat, unless it was a boat owned by some one living above the bridge, would undertake to pass the same with any frequency at all, or to carry on any business or trade or traffic that would require it to pass through the bridge. It has been practical prohibition to all craft to undertake to pass through the bridge; and it is no answer for the company to say that it will give no better accommodations until a traffic has first been established that will warrant the necessary expenditure and outlay; nor will it do for the company to say that it is unreasonable to require it to maintain an engine and power day and night, or a large force of men on the bridge constantly, considering the amount of traffic that would pass through the bridge.

But, in saying this, the defendant judges the amount of traffic by what it has had; by what is an effectual prohibition to traffic to go above the bridge.

We believe that the railroad company might have built a bridge that would have- been entirely sufficient for this place on which the draw might have been operated by hand-power by the use of two or three men, and the only reason why it may not so operate a bridge is because it has seen fit to place there a bridge 'which requires a much greater force to handle; and as the railroad company has seen fit to use so large and extensive a bridge, it certainly can not complain if the courts require it to use a proper force and appliances for handling the same.

It is claimed that this court has no authority to establish any rules or regulations governing the operation or opening of the bridge in question.

The court has authority to carry out this decree, and to require the defendant to use such means as are necessary for that purpose.

Decisions are not wanting to show that it is for the courts to determine whether a draw is suitable or not. 2 Gray, 339; 4 Conn., 54.

The purpose of law-makers and of courts is to so regulate traffic upon the bridge and traffic upon the navigable waters, that they shall interfere with each other as little as possible. The state may determine in its legislative capacity, that one is of so much greater importance than the other, on account of the quantity and volume of business, that the lesser shall give way entirely to the greater; and the private individual who is damaged by such action on the part of the state, may have no cause of action for damages; but we apprehend that the courts have no authority to say that, because the traffic of defendant over its bridge is very large and that upon the water is small, therefore that upon the water should yield to that upon the bridge. This reasoning would lead to keeping the traffic upon the water at a minimum, and the traffic upon the bridge at a maximum, greatly to the injury of the public, and it has been the law, and is today, that no one has a right to obstruct or materially impede the use of navigable waters for the commerce for which they are adapted.

The court, therefore, is unable in this case, in following the law, to adopt the ideas of the defendant that it is under obligation to afford only such privileges and opportunities for passing through its bridge as the size of the commerce may demand.

The railroad company has, in a measure, tried to comply with the decree, and insists that it has complied with the same in good faith so far as, in its opinion, it believed it was under obligations to. comply.

The kind of service it has given to boats passing its bridge, it contends, is all that the law of the decree required of it, and that in every way it has acted in good fáith.

The court is inclined to give the company credit for acting in good faith and not designedly refusing to carry out the decree of this court. Nevertheless, what it has done does not satisfy the law of the case nor the law intended to be imposed upon the defendant by the decree, and which we believe the decree does impose upon it. •

Having, therefore, determined this much, it would, perhaps, be unjust at this time to proceed to punish the defendant for a failure to comply with the decree of the court, when the decree itself does not point out definitely what the defendant is to do by way of specifying wherein and to what extent it must afford lawful privileges to those navigating the waters under its bridge. The means to be adopted to comply with the law of the decree were left wholly to the company. If it adopted means that could not accomplish the end required of it, it would afford no excuse in law for not doing anything more, but it might be some excuse for its action so that it would be unjust, when it had done what it has in good faith — believing that it had fully complied — to punish it, as would be done in ease of a refusal to comply at all.

Under such circumstances, in an action of this kind, it is within the authority of the court and, we believe, within the duty of the court, to point out to the defendant wherein it has not complied with the decree of the court, and give to it a further opportunity and require that by a time named it shall comply with the decree as understood by the court and, if not, then the excuse now offered can no longer be plead by the defendant.

We, therefore, say to the defendant, that it is its duty by the decree to furnish a draw-bridge for that place, such as is customary over navigable waters. That means that it shall have a suitable draw and machinery and power necessary for operating the same, as such bridges are usually operated, and, under the testimony in the case, that power should be such that this bridge can be opened within seven minutes from the time it gets the signal from the boat. In fixing the time, we believe that we have given the railroad company a full length of time usual for bridges situated under like circumstances of this bridge.

We will not say that the power to be used shall be steam or electricity, although the evidence shows, without contradiction, that the power usual on bridges of this size, adopted within the last five years, is steam or electricity.

Under the circumstances, we believe that the railroad company should have the privilege of moving this bridge by hand-power providing sufficient men are used to have the bridge opened within seven minutes from the time the signal from the boat is given. This can not be done, according to the évidence, in the method which has been adopted by the railroad company.

The matter of sending for help at quite a distance from the bridge, and giving time for the help to get there, is not sufficient and does not comply with the law of the case.

Accepting the plea of the defendant that it has acted in good faith, believing that it was complying with the decree of the court, and having pointed out more definitely than the decree does, what is required of the defendant to fully comply with the decree, we give the defendant a further opportunity to comply with the terms of the decree as herein construed, and we will postpone this case until the 13th day of May, 1901, to give the defendant an opportunity to perform the duties imposed upon it by the decree as construed by the court, and, if it has not by that time so complied, we will further consider what is to be done in this ease.


text:
    EMPLOYEE AT YEARLY SALARY NOT ENTITLED TO OVERTIME.
    Circuit Court of Cuyahoga County.
    Thomas W. Davis v. R. S. Hubbard, Treasurer of Cuyahoga County, et al.
    Decided, March 17, 1899.

      Master and Servant — No Extra Compensation Recoverable Where Employment is at Yearly Salary.

    In the absence of any express provision in the contract of employment, an employee, who is employed in a certain capacity at a yearly salary, can not maintain an action to recover extra compensation for time spent in excess of eight hours per day.
    Caldwell, J.; Hale, J., and Marvin J., concur.
   Thomas W. Davis brought this action in the court below to recover for over-work under a contract.

An answer was filed denying any indebtedness, and a reply was filed to that.

When the case came before the court, below, an objection was made to any testimony under the pleadings, based on the ground that there was no cause of action set out in the petition. The court sústained that demurrer to evidence, and a verdict was rendered by direction of the court for the defendant, Hubbard, and a judgment entered therein dismissing the petition. The action was first brought against R. S. Hubbard individually, and against R. S. Hubbard, treasurer of Cuyahoga county, and a demurrer was filed to that petition which was sustained, but no final judgment entered, and the plaintiff below, Davis, took leave to amend the petition and put it in the shape in which it was at the time the case was finally disposed of in the lower court.

The first part of the petition presents one question involved here, and the latter part another, and although they might be considered together, I will consider them separately.

This is plaintiff’s amended petition:

“Now comes the plaintiff and by leave of court first obtained files this, his amended petition herein, and for his cause of action he says:
“The defendant, R. S. Hubbard, is the duly qualified and acting treasurer of the county of Cuyahoga in the state of Ohio, and on the first day of September, 1894, plaintiff entered into a contract with said defendant, by the terms of which contract the plaintiff promised and agreed to enter the employ of said defendant in the capacity of a deprtty in the office of said county treasurer of said county and to perform the duties of said deputy, in consideration of which agreement said defendant, as treasurer of said county, promised and agreed to pay to plaintiff for said services as deputy at the rate of one thousand dollars per annum, payable semi-monthly; that said agreement was thereafter modified and made definite in this, to-wit: The said plaintiff and defendant agreed that eight hours per day should constitute a day’s work of said plaintiff; that under said agreement as so modified and made certain, the plaintiff entered said employment as deputy county treasurer and continued in said occupation and employment up to and until the 31st day of January, 1896, on which day plaintiff was discharged from said employment by said defendant.”

The petition sets out the amount of labor he (Davis) performed during the time he was acting in the capacity of deputy treasurer, to the amount sued for in this petition, at fifty cents an hour, as over-work, in excess of the eight hours per day. Now he says this was only done to make the agreement more specific, that eight hours should be a day’s work; that that was the only object and purpose, and that for any work over-time he was to be paid extra.

If the original contract meant eight hours should be a day’s work, then the additional contract made did not alter the original contract in that respect; eight hours still constituted the day’s work. But if the contract meant as here set out — the substance of it, and that is all we have — if the contract read that he was to perform such ordinary labor or ordinary day’s employment as the duties of the office called for and as was customary in the office, if the contract meant that, then the alteration, whatever the eight hours meant,' was without any consideration whatever and would be of no binding force. It would simply be agreeing, after a contract was made, to pay a party more than he was to receive by the contract, without any extra consideration, and it would have no binding effect upon the party so agreeing. So that the original contract not being in force as to its terms, we can only take the contract as being what contracts of this nature generally mean.

It would be a strange doctrine to most of the merchants of this city where they employ a man to work in a store on a salary of a thousand dollars a year, if that man was only to work eight hours a day and when he worked eight hours each day for a year, he had fully performed his contract, although it was the custom in that store to open very early in the morning and keep open until very late in the evening, or until nine or ten o’clock at night.

And so we might follow this in any department of the business of life where men are employed by the year. It would be introducing into that kind of contract an element that the public has not dreamed of. And to hold now under any law that exists in this state that eight hours a day applies to a contract of this character, would be going beyond anything that the law would warrant, and would simply be revolutionizing the understanding that is entered into by both employer and employee under contracts of this character, and that would not do. Instead of the courts becoming arbitrators of principles of law to make persons more safe and to secure men in their property and in their rights, it would be making the courts mere machines to overthrow all the safety in contracts that parties have.

Now, so far then as we have any knowledge concerning this contract of the hiring by the year at a thousand dollars, it means that he was to devote such time to the work of the office of the treasurer of the county as men generally do who work in that capacity in receiving taxes and working upon the books; and we all know that that varies; there are seasons when people are not paying taxes that a day’s work may be short, and there are other seasons when the day’s work is necessarily long; and I notice that for all extra hours charged here, he has charged for days longer than eight hours, and this being true, under any fair construction of the contract as entered into, it clearly appears that the new contract was one without any consideration so far as the treasurer, Hubbard, is personally concerned; hence of no binding effect whatever.

This might be sufficient, but further on the plaintiff says, that said R. S. Hubbard, as county treasurer as aforesaid, did not, at the time said extra labor was performed, nor at any time within the period of said employment or theretofore, agree with the county commissioners of said county of Cuyahoga as to the compensation which this plaintiff was to receive for said extra labor, nor was said defendant authorized by said county commissioners of Cuyahoga county to employ this plaintiff at said extra labor at a stipulated sum per day in accordance with the statute in such case made and provided.

Wherefore, he concludes that the said R. S. Hubbard personally is liable for this extra labor. In other words, he says that there is a statute in this state and that under it Hubbard can employ help in the officé of county treasurer only in accordance with that statute and, not having the authority required from the county commissioners to do what he undertook to do, he therefore could not bind the county and hence did bind himself personally.

I have examined this question because it is new, with some considerable care, and I find this to be the rule in regard to public officers, and it varies somewhat from that of an agent.

It is frequently said in works on agency, that if the agent does not bind his principal because he has gone beyond the authority given him, then he binds himself; and, with some exceptions, that is quite a general rule. Now that is not the rule in regard to public offices. A public officer may not bind himself and yet lie may not bind the principal. The party may be without any remedy either as to the public officer or corporation — the municipal corporation if it be such — or the government, or whatever corporation of which he may be acting as a public officer. But I find this to be laid down as the rule governing public cffieers, that the party can recover from the officer only where lie has acted without authority from his principal and has used apt words to bind himself. Before he can be held liable, he must have acted entirely without authority to act, and he must then have used apt words to bind himself.

I have examined all the cases that were cited to show that Hr. Hubbard is liable under this petition, and I find, in every case cited, that they find that the officers acted clearly without any authority, and without any. contract and they used apt words to bind themselves. This contract is entirely wanting in showing that Hubbard used any apt words to bind himself. No language is set forth, nothing definite is set forth to determine that matter at all- — a mere conclusion and nothing else — and that is not set forth as a conclusion from the words used, but as a conclusion of law. So that, in this case it would be impossible to hold Mr. Hubbard until it is shown, first, that he acted without authority, and second, that he used apt words in the contract he made, to bind himself; and, even then, there are exceptions to that rule, and one is this: If the officer act under a public statute that limits his authority and shows just how far he may go, then the party, who acts, who deals with him, deals with knowledge of his authority and he knows that he has no authority to make such contract, because what is known publicly is known by all men, and a public statute and any action that officers may take under it, that is, of a public nature, is known by everybody. And that being true and the contract having no apt words, even if he has exceeded the authority of the statute and acted contrary to it without authority to act under it, he still is not liable.

This is held in 18 Ind., 66; 4 Minn., 126; and in a number of other cases cited.

It is held that the party dealing with the officer in such case is presumed to know his authority: 16 Fed. Rep., 688; 42 Ind., 106; 12 Iowa, 142; 18 Md., 276; 52 Mo., 578; 7 Wallace, 606; and I have seen many other cases on this subject.

There are cases holding that where, as in this ease, the party is bound to know the authority of the officer and deals with him about matters that concern the government, such dealings are against public policy; that it is against public policy to have an officer dealing with matters pertaining to government where lie has no authority to, and the party thus dealing with him can not justify his acts even on a personal basis and, in order to escape liability himself, it is not necessary, that he should create a liability against his principal, against the corporation. That is held in a number of cases: 22 Conn., 371; 29 Cal., —; 21 Wis., 199; 42 Ind., 106.

This being the law of the case as I find it laid down without exception, it appears conclusively, beyond all possibility to contradict it, that Hubbard in this ease did not make himself liable on this contract, even though he made it, and even if it had a sufficient consideration to sustain it, which it did not have, as I have stated.

The judgment of the court below is affirmed.


author: Gorman, J.

text:
    DESCENT OF ANCESTRAL PROPERTY PASSING BY WILL TO THE RELICT OF A DECEASED HUSBAND.
    Court of Appeals for Hamilton County.
    Aribert Gazlay et al v. John E. Gosling et al.

    Decided, November 22, 1915.

      Law of Descent — Deceased Husband Not the Ancestor of His Relict — Ancestral Property Devised by Husband to Wife Who Died Testate Thereby Stripped of Its Ancestral Quality — And Next of Kin of the Husband Can Not Maintain an Action to Contest the Will of the Wife.

    1. Within the meaning of the statutes of descent, Sections 8573 to 8577, G. C., inclusive, a deceased husband can not be the ancestor of his relict.
    2. Property which came to a deceased husband of a relict as ancestral property by discent, devise or deed of gift, and is devised by him to his widow, ceases to be ancestral property in her hands, and if she should die intestate such property would not pass under the provisions of Section 8573, G. C., to the blood of the original ancestor from whom the estate came.
    3. When such relict of a deceased husband dies testate seized of property which was ancestral in her deceased husband, but came to her by devise from said husband, those who are of the blood of the husband and of the ancestor from whom the estate came and the next of kin of the deceased husband have no such interest in the property, as entitles them to maintain an action to contest her said will.

      C. W. Baker, for plaintiffs in error.

      Schorr <& Wessebnann and Clore, Dickerson & Clayton, contra.

       Motion for an order to direct the court of appeals to certify its record overruled by the Supreme Court January 25, 1916.

   Gorman, J.

Plaintiffs in error brought an action in the court below to contest the will of Susan Gazlay, deceased. Upon motion of the defendants the court ordered the plaintiffs to amend their petition, which was accordingly done and an amendment to the amended petition was also filed.

In substance the plaintiffs claim in their amended petition and the amendment thereto that Susan Gazlay died testate on or about April 9, 1913, leaving a paper writing which purports to be her last will and testament, and which they aver is not her last will and testament. Plaintiffs further aver that they are brother and sister, and are heirs at law of Susan Gazlay, deceased, and that they are the only children of Carter Gazlay, deceased; that Carter Gazlay, their father, was the only surviving child and sole heir at law of Aribert Gazlay, deceased; that Aribert Gazlay, deceased, was a brother of James "W. Gazlay, deceasedj and that James W. Gazlay, deceased, was the father of Allen Gazlay, deceased, who was the husband of Susan Gazlay, deceased, testatrix herein; that James W. Gazlay left no children but Allen W. Gazlay, deceased, and said Allen W. Gazlay left no issue and had no other property except that which he inherited from his father, James W. Gazlay, deceased, except what he may have purchased; that said Susan Gazlay, deceased, obtained all the property and estate which she had in her lifetime and of which she died seized through her husband, Allen W. Gazlay, by inheritance, devise and gift, and in no other way, so that under the statutes of descent and distribution had said Susan Gazlay died intestate her said property would have reverted to the collateral blood kin of her husband, Allen W. Gazlay, and that plaintiffs are such collateral blood kin. Plaintiffs further aver that said James W. Gazlay had a brother, Theodore Gazlay, who died leaving children and their representatives who are parties to this cause, and that said James W. Gazlay had other brothers and sisters who are deceased, and whose representatives are made parties hereto. Plaintiffs pray that an issue be made up as provided by statute, and that said paper writing purporting to be the said last will and testament of Susan Gazlay be held not to be her last will and testament.

To this petition and to the amendment thereto a demurrer was filed by the defendants, which demurrer was sustained, and the plaintiffs not desiring to plead further, the petition was dismissed at their cost. They prosecute error to that judgment.

From the averments of the amended petition it appears that the plaintiffs in error are the first cousins once removed of Allen W. Gazlay, deceased, being the children of his first cousin, Carter Gazlay. It further appears that the estate of Susan Gazlay came to her by devise from her husband, Allen W. Gazlay, and that the estate of Allen W. Gazlay which came to Susan Gazlay descended to Allen W. Gazlay from his- father,- James W. Gazlay, by devise, descent or deed of gift; that there are no children of Allen W. Gazlay, deceased, and no brothers or sisters.

The question presented by this demurrer is whether or not the plaintiffs in this case have an interest in the estate of Susan Gazlay, deceased, or, rather, would they have an interest in that estate if the paper writing purporting to be her last will and testament should be set aside and held for naught. Under the will of Susan Gazlay they are not legatees or devisees, nor are they heirs or next of kin of Susan Gazlay, so far as the averments of the petition disclose. Their only right, as they claim, to maintain this action is by virtue of the fact that they are of the blood of Allen W.' Gazlay and James W. Gazlay, from whom the estate came. If they would have no interest in the estate of Susan Gazlay in case her will should be set aside, then they are not proper parties plaintiff; they would have no interest in this action and could not maintain the action, and the demurrer was properly sustained.

We are of the opinion that the court of common pleas did not err in sustaining the demurrer to the petition.

Plaintiffs claim under Section 8573, Subdivision 6 of the General Code, which is the section relating to the descent of ancestral property. Plaintiffs’ counsel in his brief admits that there are no children or their legal representatives of Susan Gazlay; that there is no husband of Susan Gazlay, he having died before Susan Gazlay; that there are no brothers or sisters of Allen W. Gazlay; that there is no ancestor of Allen W. Gazlay to whom the estate may ascend. He admits .that James W. Gazlay, the ancestor from whom the estate came, is deceased, and that the only child of that ancestor is Allen W. Gazlay, who is deceased; that there is no relict of Allen W. Gazlay to take the estate, and none of the half-blood. But he claims that under Subdivision 6 plaintiffs are entitled to inherit this property as the next of kin of Allen W. Gazlay. That subdivision of the section reads as follows:

“If there are no such half-brothers and sisters of the intestate, or their legal representatives, the estate shall pass to the next of kin to the intestate of the bloo.d of the ancestors from whom the estate came, or their legal representatives.”

Now it will be noted that two conditions must exist to enable the plaintiffs to inherit this estate if Susan Gazlay had died intestate: They must be the next of kin of Susan Gazlay, and

also of the blood of the ancestor from whom thé estate came— that is, the blood of Allen W. Gazlay. According to the allegations of the petition they are of the blood of Allen W. Gazlay and of the blood of James W. Gazlay, his father, but they are not next of kin of Susan Gazlay, the intestate — assuming that she would be intestate if this will were set aside.. Therefore it appears certain that they could not inherit this property, even if it were ancestral property.

Furthermore, we are of the opinion that this property which came to Susan Gazlay from her deceased husband ceased to be ancestral property when she acquired it, even if it were ancestral property in Allen W. Gazlay during his lifetime. We think it is clear that a husband can not be the ancestor of his wife, and we think this proposition has been decided in Brower v. Hunt, 18 O. S., 311. The proposition decided in that ease was that the terms “ancestor” and “descent” as used in connection with the order of distribution prescribed in the first section of our statute of descents had reference to such estates only as descended to the intestate in right of blood, or which came to him by devise or deed of gift from one from whom he might have inherited the same in such right, and that where the estate came to the intestate otherwise, its descent to him is regulated by the second section of the act.. The second section of that act is 8574, prescribing the order of descent of non-ancestral property, or property which came by purchase.

Now let us assume that Allen W. Gazlay died intestate, possessed of this ancestral property. His wife could only take a life interest in this ancestral property under the provisions of 8573, and at her death her interest in the property would become extinguished. She could not inherit from her husband as ancestor within the meaning of Section 8573, because the only persons who can take under that section are those having the blood of the person from whom the estate comes, as was said in Brower v. Hunt, supra So that in any aspect of the ease it appears to us that whether this property was ancestral in the hands of Allen W. Gazlay during his lifetime, or was non-ancestral property, the plaintiffs in this case, upon the death of Susan Gazlay, if she had died intestate, would have no right, title or interest in the property; and inasmuch as those only who have an interest in the property, or who would have an interest in the property if the will were set aside can maintain an action, it is manifest that plaintiffs have no standing in court — are not the proper parties plaintiff — and the court of common pleas did not err in sustaining the demurrer to the petition.

Whether or not the court of common pleas was warranted in requiring the plaintiffs to make their petition definite and certain by setting out the sources of their title or interest in this property, need not now be considered. It is probable that the court might not havé been warranted in granting this motion, but in view of the fact that the plaintiffs complied with the requirements of the court to set out fully the sources of the title which they claim, we can not see that any prejudice resulted to the plaintiffs in granting the motion.

For the reasons stated, the judgment of the court of common pleas will be affirmed.

Jones (E. H.), P. J., and Jones (Oliver B.), J., concur.


author: Houck, J.

text:
    VALIDITY OF A VOLUNTARY ASSESSMENT AGAINST COMMON STOCKHOLDERS.
    Court of Appeals for Knox County.
    Ed. Dever v. The Reeves Engineering Company.

    Decided, October 22, 1915.

      Corporations — Dividends Remitted by Preferred Stockholders — On Condition that the Common Stockholders Stand an Assessment — Action Dies to Compel Payment of the Assessment.

    An agreement entered into by all the stockholders of a corporation, whereby the holders of the preferred stock remitted all dividends accrued and unpaid and all dividends which should accrue up to a certain specified date, on condition that the holders of the common stock should stand an assessment of $40 per share, does not lack in mutuality nor is it void for want of consideration, and an action lies against a common stockholder who has failed to meet the assessment so levied.

      L. G. Stillwell and G. L. B ermont, for plaintiff in error.

      Henry G. Devin and D. B. Grubb, contra.

       Motion for an order to direct the court of appeals to certify its record overruled by the Supreme Court December 11, 1916.

   Houck, J.

This cause is here on error to the judgment of the common pleas court of this county. The action below is based on a written agreement entered into between the stockholders of the Reeves Engineering Company, whereby they agreed to pay certain amounts to the treasurer of said company, for the benefits to accrue to them and said company, the amount claimed to be due from the defendant below being $640. The petition averred that:

"Plaintiff is a corporation organized under the laws of the state of Ohio, with an authorized capital stock of 600 shares of common stock of the par value of $100 each, and 400 shares of preferred stock of the value of $100 each; that on or about the 15th day of December, 1910, and at the dates and times hereinafter mentioned, said plaintiff had issued and outstanding of its said capital stock 576 shares of the said common stock and 263 shares of said preferred stock; that on or about said date, in order to provide said corporation with additional money, the stockholders entered into a written agreement between themselves, and with said corporation, for the payment of a voluntary assessment upon the shares of common stock held by each stockholder, and the following is a copy of said agreement, to-wit:
“ ‘We, the undersigned, being all of the common and preferred stockholders of the Reeves Engineering Co. of Mt. Vernon, Ohio, in consideration of the mutual promises of each other, and of the benefits to accrue to each of us and the Reeves Engineering Co., do hereby agree as follows:
“ ‘We, the preferred stockholders, hereby agree to excuse and remit in full, receipting therefor, all dividends now accumulated or that shall accumulate prior to Jan. 1st, 1911.
“ ‘We, the common stockholders, hereby agree to pay to the treasurer of the Reeves Engineering Company $40 per share upon the number of shares set beside our respective names.
“ ‘Payments to be made as follows: 25% of said amount on or before Dee. 15, 1910; 25% on or before Jan. 15, 1911; 25% on or before Feb. 15, 1911, and the entire balance on or before March 15, 1911.’
‘ ‘ Plaintiff further says that said agreement was signed by the owner and holder of each and all of the issued and outstanding stock of said corporation; that at said time the said defendant, Ed. Dever, was the owner and holder of sixteen shares of the said issued common stock of said corporation, and that on or about said date said defendant, for the consideration therein set forth, did sign his name to said agreement, and did set beside his said name the number sixteen to indicate the number of shares of said stock so owned and held by him.
“Plaintiff further says that said agreement was accepted by the board of directors of said company, and the subscription thereunder called for; that said defendant was duly notified thereof, and requested to make payment to the treasurer of plaintiff of the several installments due thereunder, which said defendant refused and neglected to do, and has ever since refused and neglected to pay the said amount of $40 per share upon the number of shares set beside his name, or any part thereof.
“Plaintiff further says that it has duly performed all the obligations and conditions upon its part to be performed, and there is now due and owing to said plaintiff from said defendant, upon said defendant’s agreement hereinabove set forth, the -sum of $640, with interest at six per cent, per annum from the first day of August, 1911, ’ ’ — and prays judgment, etc.

The defendant filed an answer denying all the material allegations of the petition, and specifically averring that notwithstanding he signed said paper writing that it was without consideration moving either to him or the said the Reeves Engineering Company, and that said company did not own the claim upon which suit is brought.

A reply in the nature of a general denial was filed to the answer; the cause was tried to a jury, and a verdict returned for the full amount, with interest, and judgment rendered upon the verdict. The judgment is sought to be reversed for the following reasons:

First. That the statutes of Ohio do not authorize a recovery upon such an agreement as the one upon which the suit at bar is based.

Second. That the plaintiff below did not own the claim upon which suit was brought.

Third. The contract of agreement is not founded upon a good, valid, or sufficient consideration, and is without any consideration to support it.

From an examination of the statutes of Ohio and the record in this case we are fully satisfied that the alleged errors Nos. 1 and 2 are not well taken, and'should be overruled, and the same is hereby accordingly done.

The real question presented for the determination of the court appears to us to be: Is the paper writing sued upon a contract in substance and in fact, with a good and sufficient consideration to support it, or is there any consideration for it? If this is answered in the affirmative then the judgment should stand; but if in the negative it must fall. Can it be claimed with any degree of assurance, after an examination of the contract, that the plain language contained therein does not state a consideration? It certainly does not fall for lack of mutuality, and as mutuality is essential to the validity of at least an executory contract, the law certainly presumes an intent to create mutual obligation, except in cases where the expressed agreement will not admit of that interpretation.. From the nature of the agreement, what is the reciprocity between the parties ? The plaintiff in error was the owner of sixteen shares of the common stock of the Reeves Engineering Company, and there were many others who owned stock, and also a number who owned preferred stock. The company needed more money to conduct its business, and the preferred stockholders said in the agreement: “We hereby agree to excuse and remit in full, receipting therefor, all dividends now accumulated or that shall accumulate prior to January 1st, 1911.” The common stockholders said in the agreement: “We hereby agree to pay to the treasurer of the Reeves Engineering Company $40 per share upon the number of shares set beside our respective names.” This was a promise for a promise; and when carried into effect, which was done by all of the stockholders except the plaintiff in error and two others, enhanced the value and increased the assets of the company, and thereby inured to the benefit of all the stockholders, including the plaintiff in error and the company, which was fully intended by the language of the agreement, namely:

“We, the undersigned, being all of the common*and preferred stockholders of the Reeves Engineering Company of Mt. Vernon, Ohio, in consideration of the mutual promises of each other, and of the benefits to accrue to each of us and the Reeves Engineering Company, do * *

What were the benefits to be derived? The payment on the contract would and did increase the value and assets of the company. The co-stockholders with plaintiff in error contributed their part, as provided for and agreed to by them in said written agreement, which was all they had agreed to do or could do, and which thereby enhanced and enlarged the assets of the company, which inured to the benefit of the plaintiff in error as well as the company, and which was the ultimate object of the contract. From an examination of the language of the instrumerit it is apparent that the parties thereto intended to make a contract — a binding obligation — and every line precludes the idea that it was not intended to be binding upon the parties thereto and of full force and effect in law.

We think the doctrine laid down in the case of Sterling Wrench Company et al v. Amstutz, 50 Ohio State, page 484, first paragraph of the syllabus, is applicable to this ease:

“An agreement entered into by solvent shareholders of an embarrassed corporation that they will severally contribute and raise a fund to pay the corporate liabilities, creates a valid obligation; and if the share to be contributed by each is not expressly fixed by the terms of the agreement, each should contribute in the proportion that the number of shares of stock owned by him bears to the shares held by all the contributors. ’ ’

The record discloses that all of the stockholders except the plaintiff in error and two or three others have paid the several amounts agreed by them to be paid under said contract, and that full performance by all of the contracting parties of their obligations under the contract have been met by them. In the face of this fact and the plain language of the contract, which to our mind is founded upon a good and valuable consideration, is it proper and right under the facts and the law that the plaintiff in error should not be compelled to comply with his agreement and the terms of the contract as entered into by him ? We think not. A majority of the court is of the opinion that the judgment below is right and should be affirmed.

Judgment affirmed.

Shields, J., concurs; Powell, J., dissents.


author: Jones (Oliver B.), J.

text:
    INDEMNITY TO BENEFICIARIES UNDER. A POLICY OF INSURANCE PLEDGED FOR. A LOAN.
    Court of Appeals for Hamilton County.
    Henrietta D. Schuermann, Executrix of the Estate of Christian F. Schuermann, Deceased, v. Henrietta Twachtman et al.
    Decided, January 31, 1916.

      Life Insurance — Policy Pledged try the Insured for a loan Which was Not Repaid — Beneficiaries Who Satisfied the Debt Entitled to Indemnity.

    Beneficiaries under a policy of life insurance, who have been compelled to pay a loan which the insured by pledging the policy obtained for his own use and benefit, are entitled to judgment against the estate of the insured for the amount of the debt so satisfied.

      L. D. Oliver, for plaintiff in error.

      Long & Pcixson, contra.
   Jones (Oliver B.), J.

This cause was decided in the court below upon a general demurrer to the petition. Defendant there not desiring to further plead, on the overruling of this demurrer judgment was entered for plaintiffs.

The petition states that in each cause of action money was borrowed by defendant’s intestate Christian F. Schuermann for his sole use and benefit, from the Mutual Life Insurance Company, under an agreement to repay same signed not only by himself but also by his children, W. H. Schuermann and Elizabeth Schuermann Twachtman, neither of whom received any part of said consideration and who were then the only beneficiaries of the insurance policy which was by the terms of said agreement then assigned to the company as collateral security for the payment of said loan; that Elizabeth Schuermann Twachtman died January 26, 1908, leaving surviving her the following named children: George Twatchman Henrietta Twachtman, Elizabeth Twachtman and Willie Twachtman, and Christian F. Schuermann died November 15, 1913; that by reason of the failure of Christian F. Schuermann to repay said loan according to the terms of said agreement, plaintiffs Henrietta Twachtman, Elizabeth Twachtman and Willie Twachtman, George Twachtman and William H. Schuermann were compelled upon the death of Christian F. Schuermann to pay out of the proceeds of said policy of insurance in the first cause of action the sum of $1,658, and in the second cause of action the sum of $1,436, to the Mutual Life Insurance Company; that the said George Twachtman duly assigned his claim therein to the plaintiff; and that by reason of said facts plaintiffs have been damaged to the extent of $829 and $718 respectively — making together the sum of $1,547, for which judgment was prayed.

It was alleged in the petition that William IT. Schuermann had an equal interest with plaintiffs, and had on request refused to join with them as plaintiffs and had therefore been made a defendant. Plaintiffs claim as representing the half interest of their mother, who with her brother became, surety for the debt of their father, the. insured, to have paid such debt and ask to be reimbursed for such payment out of the estate of the principal debtor.

It is well settled that where property is mortgaged or pledged by its owner, to secure the debt of another, such property occupies the position of a surety or guarantor, and if such property is taken to satisfy the debt the owner may recover indemnity from the principal debtor. 1 Brandt on Suretyship & Guaranty, 3d Ed., Section 43.

The demurrer admitting that the debt to the insurance company was the debt of Christian F. Schuermann and that it was in part paid by plaintiffs, it follows that they were entitled to recover from his estate so much of the debt as they were compelled to pay, and the judgment was properly rendered for plaintiffs.

Plaintiff in error, however, coxitends that the proceeds of the insurance policy should have been paid entirely to William H. Schuermann and not one-half to him and one-half to the ehildren of Elizabeth Schuermann Twaehtman. In other words, it is contended that the words of the policy under which the company upon the death of the insured agrees to pay the amount named therein to Henrietta Schuermann as the “assured for her sole use, if living, in conformity with the statute, and, if not living, to her children or their guardian, for their use,” must be construed so as to confine such payment strictly to the ‘ ‘ children” of said Henrietta, and can not be construed as including “grandchildren” to let in the children of her daughter Elizabeth Schuermann Twatchman.

The conclusion contended for would make William H. Sehuermann the sole beneficiary of the policies, and thus a question might have been raised between him and plaintiffs below as to who was entitled to the proceeds of the policies. But it seems he has made no such claim, and it would hardly be in the power of plaintiff in error to assert such a claim for him. If she might have raised such a question in this case, it must have necessarily been done by answer, and in our view she has failed to do so by demurrer to the petition as filed herein.

The question as to whether the grandchildren would have been entitled to participate in the proceeds of the policies, if such right had been challenged by their uncle; is not entirely free from doubt. Each of these policies is an Ohio contract and would be governed by the laws of Ohio. Plaut v. Insurance Co., 4 C.C.(N.S.), 94.

Counsel for pláintiff in error rely upon Ryan v. Rothweiler, 50 O. S., 595. We can not regard it as an authority for the reason that there the wife and only child, and the only child of that child, all died before the husband and father who was the insured, and the policy was held to enure to the benefit of the estate of the insured under the principle covered by Section 9399, General Code.

Reliance is also placed upon the two unreported cases of Frank, v. Bauman, 54 O. S., 621, and Dovel v. Dovel, 69 O. S., 576. Each of these cases is stated in the report to have been decided on the authority of Ryan v. Rothweiler. Notes in regard to the first of these cases are found in 35 W. L. B., 59, and copies of the printed record and briefs used in the Supreme Court in the Dovel case are submitted here. An inspection of these would indicate that the question whether a grandchild would be included under the word “children” as a beneficiary under such a policy in right of its deceased parent, was involved in each of these eases. But as the Supreme Court failed to report either of these two cases, we feel compelled to follow their repeated declarations as to unreported cases and refuse to consider them as authorities binding upon this court.

The authorities outside of Ohio are not in accord upon this question. A leading case in favor of admitting the child of a deceased child to an interest in the policy is found in Continental Life Ins. Co. v. Palmer, 42 Conn., 60. The same rule has been followed in Ins. Co. v. Fish, 59 N. H., 126; Glenn v. Burns, 100 Tenn., 295; Ins. Co. v. Basler, 140 Mich., 233; Diehm v. Ins. Co., 129 Mo. App., 256.

A contrary rule has been announced in Walsh v. Mutual Life Ins. Co., 133 N. Y., 408; Martin v. Modern Woodmen, 253 Ill., 400.

If it were necessary to construe the language of the- policy, in the absence of reported decisions in Ohio we should be inclined to follow the rule laid down in the Connecticut case and the other cases first noted above, as carrying out the natural intention of the parties and being more in accord with the law of descent and distribution, the provisions for insurance being somewhat analogous to testamentary provisions. The condition of the record in this case, however, as we have above stated, does not require a decision upon this question, but does require an affirmance of the judgment.

Judgment affirmed.

Jones (E. I-L), P. J., and Gorman, J., concur.


author: Chittenden, J.

text:
    INCOMPETENT TESTIMONY AS TO THE EFFECT OF INJURIES.
    Court of Appeals for Hamilton County.
    City of Cincinnati v. Susie C. Osborne.
    Decided, March 8, 1915.

      Evidence — Statements by One Who has been Injured as to Pain and Suffering Caused Thereby Incompetent, When.

    Statements by one who has been injured, as to the effect of the injury and the suffering caused thereby, can not be repeated from the witness stand by a physician not in attendance on the case or by third persons, in an action in which damages are sought on account of the injury.

      Walter M. Schoenle, City Solicitor, and Constant Southworth, Assistant Solicitor, for plaintiff in error.

      F. E. Burnett and Thomas L. Michie, contra.
   Chittenden, J.

This action was brought in the common pleas court by Susie C. Osborne to recover damages from the city of Cincinnati for injuries alleged to have been sustained by a fall caused from an alleged defective sidewalk. The plaintiff recovered a verdict and judgment against the city for $4,000. • A number of errors alleged to have occurred on the trial are urged as grounds for reversal.

Plaintiff called as a witness Dr. Theodore H. Wenning, who was qualified to testify as an expert. He had at no time treated the plaintiff for the injuries complained of. During the course of his examination he testified, among other things, as follows:

"From what she told me of her previous condition I should judge that this displacement was much more pronounced only after exercise.”

Also:

"From what she said the displacement was very pronounced and occurred only after considerable exercise.”

After further describing the condition of the plaintiff, he was asked:

“That being the case — is that from your own examination or what she told you? A. I am using both, my examination as a basis.”

Objection was made by counsel for the city to the introduction of this evidence, which objection was overruled and exception lodged.

A daughter of the plaintiff was called as a witness. Among other things, she testified as follows:

“And she would always tell me just how it felt and would always tell me it hurt her very, very bad. Q. Did you hear her make any complaints of pain? A. Yes, sir. Q. How frequently? A. She complained of it all the time.”

Counsel for the city moved to strike out all the evidence of the witness as to complaints, which motion was overruled and exceptions taken.

The evidence of Dr. Wenning and of the daughter as to the complaints made by the plaintiff is in direct conflict with the decision of the Supreme Court in Pennsylvania Co. v. Files, 65 O. S., 403, and City of Cincinnati v. Olshewitz et al, 89 O. S., 414. This same conclusion was also reached by the Court of Appeals of the Sixth District in Lucas County in the unreported case of The Toledo Railways & Light Company v. Yahnke.

We find no other error justifying a reversal of the judgment, but for the error in receiving the evidence of Dr. Wenning and the daughter of the plaintiff, as above set forth, over the objection and exception of the defendant, the judgment of the common pleas court will be reversed and the cause remanded for a new trial.

Richards, J., and Kinkade, J., concur.