text:
    Parker & Day Marble & Tile Co. v. The East Ohio Gas Co. et al.

      Mechanic’s lien — Suit to establish and for foreclosure — Action at law and triable to jury, when — Appeal does not lie, when.

    1. When in a suit for the establishment of a mechanic’s lien and the foreclosure thereof, brought by a subcontractor against the owner of the building, such defendant interpleads the amount due under the contract to the principal contractor who in turn sets up facts tending to show breach of the contract and denies that anything is due plaintiff, the issues joined constitute an action at law and should be determined by the intervention of a jury.
    2. In such case appeal does not lie from the judgment of the common pleas court.
    (Decided July 2, 1917.)

      Appeal : Court of Appeals for Cuyahoga county.
    Error : Court of Appeals for Cuyahoga county.

      Messrs. A. A. & A. H. Bemis, for plaintiff in error.

      Messrs. White, Johnson, Cannon & Neff, for defendants in error.
   Lieghley, J.

The parties stood in the same order below.

The two cases above, numbered 1707 and 1767 on th'e docket, are an error proceeding and an appeal from the same judgment in the court below.

The plaintiff, a foreign corporation, filed its petition against The East Ohio Gas Company, alleging that The Traitel Marble Company had a contract for th'e marble work on the East Ohio Gas building; that said marble company had sublet a portion of the work to plaintiff; that plaintiff had performed all the conditions and requirements to be performed by it under the terms of said contract; and that it had taken all the necessary steps to perfect a lien upon said premises. The petition prayed for an accounting of the amount due, the establishment of the lien, and foreclosure thereof, if necessary.

The defendant, The East Ohio Gas Company, sought leave of court to interplead the amount due under the contract to The Traitel'Marble Company, a foreign corporation, which leave was granted, the said Thé Traitel Marble Company made, a new defendant, and The East Ohio Gas Company discharged.

The Traitel Marble Company -did not question in any manner the jurisdiction of th-e court below under the circumstances, but answered, denying any liability under said contract 'to plaintiff, admitting the contract, but setting forth facts which if established tended to show a breach of said contract by plaintiff, and -denying .that any sum was due to plaintiff under said contract.

The case came on for trial in the court below and evidence was offered tending to establish the mechanic’s lien claimed by plaintiff, and a motion was made by defendant marble company to dismiss the case -on the ground that the plaintiff failed to establish a lien, which motion was granted and. judgment rendered for defendant, with an order that all of the fund be paid to the 'defendant marble company without the intervention of a jury or -the determination of any of the issues upon said contract made in the pleadings. From -this judgment error is prosecuted to this court to reverse the same.

We are of the opinion that when the The East Ohio Gas Company paid said fund by leave of court into court, or made the same available by way of interpleader, said fund took the place of the lien, if any. And when -the defendant marble company, without in any manner challenging the jurisdiction of the common pleas court, answered joining issue with plaintiff on the averments and claims in respect to said contract, said defendant thereby voluntarily consented to and agreed to a change in the character -of the action and submitted itself to the jurisdiction of the court below. The court below thereby acquired jurisdiction and retained it for adjudication of the issues made in the pleadings. The court below had jurisdiction of the subject-matter and of the persons. The character of the action by the • answer of the defendant became one of interpleader by reason of •the nature of the answer. ’ The fund substituted for the claimed lien was subject to the orders of the court. The only issues remaining upon the face of the pleadings were what and how much if anything was due plaintiff under said contract.

The judgment of the court below, in face of the issues joined, deprived the plaintiff, even though it did fail to establish its lien, of a trial of the issues joined in respect to said contract, and without trial thereof judicially determined that the entire fund belonged to the defendant. If the fund under the control of the court was to be disposed of, it certainly should not be disposed of until the rights of the parties therein were determined. If the trial had proceeded with the gas company as the only defendant, then, the plaintiff failing to establish its lien, the court would have been obliged to dismiss the petition for want of jurisdiction to do otherwise and could not have awarded the fund to the marble company. The marble company voluntarily submitting to the jurisdiction, and tendering issue on the contract, thereby altered the situation.

When the case came to trial the issues joined constituted an action at law, and should be determined by the intervention of a jury, unless waived. The parties by their pleadings created and developed the state of the case when it reached the trial room. Whether or not a case is an action at law or in equity is determinable by the pleadings. Raymond v. T., St. L. & K. C. Rd. Co., 57 Ohio St., 271.

Considering the case in the light we do, as above stated, that the same was an action at law when it came up for trial, we conclude that no appeal would lie from the judgment entered at that time, and the appeal, being case No. 1707, is therefore dismissed. Pratt, Admr., v. Aetna Life Ins. Co., 5 C. C., 587; Warner v. Jaeger et al., Id., 16; Campbell v. Eames, 8 C. D., 374, and Maginnis v. Schwab, 24 Ohio St., 336.

In case No. 1767, the judgment of the court below is reversed and remanded for further proceedings, at costs of the defendant in error, The Traitel Marble Company.

Appeal dismissed.

Judgment reversed, and cause remanded.

Grant and Carpenter, JJ., concur.


source: Caselaw Access Project

author: Lawrence, J.

license: Public Domain

text:
    The Commercial Travelers' Life & Accident Association of Cleveland v. Bagnell.

      Insurance — Assessments — Effect of receiving overdue payments — Waiver of right to declare forfeiture.

    A contract of insurance among other things provided that any member who failed to pay his assessments within, thirty days after notice had been served upon him by mail should forfeit all benefits as a member of the association, but that a member thus in default might be restored to all benefits, he being in good health, by paying all arrearages ■ on or before the next regular meeting of the board of directors. It also provided that should any delinquent member regain his good standing, his restoration should in no wise entitle him or any one claiming under him to any benefits on account of- any accident, injury or death received or happening while not in good standing. During the course of a number of years, a member had paid several installments1 more'than, thirty days after the receipt of notice, which payments were accepted by the company without objection or inquiry as to the state of health of the assured. For the assessment due October S, 1916, a check was received by the association November 9, but was returned for the endorsement of the assured. The assured died November 10. A second check from the drawer of the first, made payable to the association direct, to replace the check assured had failed to endorse, was received by the association November 16. Field:

    1. That the payment of all overdue assessments was for the purpose of complying with the contract of insurance and had been received for that purpose by the association.
    2. That by accepting overdue payments the association had waived its right to declare a forfeiture of the policy in this instance by reason of the failure to pay within thirty days from October 5, 1916.
    (Decided July 15, 1918.)
    Error : Court of Appeals for Cuyahoga county.

      Messrs. Tolies, Hogsett, Ginn & Morley, for plaintiff in error.

      Messrs. Gage, Day, Wilkin & Wachner, for defendant in error.
   Lawrence, J.

This is a proceeding in error to obtain a reversal of the judgment of the court of common pleas of Cuyahoga county. The parties stand in an order the reverse of that in the court below. We will refer to them in the relation in which they stood in the trial court.

There is no dispute relative to the facts in this ■case. At the close of all the evidence the plaintiff and defendant each moved the trial court for a directed verdict, and the court directed the jury to return a verdict for plaintiff, which was done, and judgment entered thereon. Motion for new trial was overruled. ' Error is now prosecuted to this court.

The facts necessary to an understanding of the questions raised here are as follows:

One R. A. Bagnell, who was the husband of the " plaintiff, in the year 1899 became a member of the defendant association, and continued such, as claimed by plaintiff, until his death, which occurred on November 10, 1916. The membership contract of Bagnell provided that his assessments should be due quarterly, on January 5th, April 5th, July 5th and October 5th, and payable within thirty days thereafter. The contract of insurance among other things provided:

“Any member who fails to pay his assessments, or any of them, within thirty (30) days after no^ tice has been duly served upon him by mail, s'halj forfeit all benefits as ■ a member of the association, and shall no longer be in good standing; providing, however, that any member having forfeited his benefits as above by failing to pay any assessments within thirty (30) days after notice has beei) served, or sent him by mail, may be restored to all benefits, he being in good health, by paying all arrearages on or before the next regular monthly meeting of the Board of Directors.
“Any member who shall have forfeited his benefits under or by virtue of his certificate of membership, shall likewise, and at the same time default occurs, and by virtue thereof, forfeit all right to indemnity and benefits of whatsoever character. Should any delinquent member at any time regain his good standing in the association in the manner above provided, his restoration thereto shall in no wise operate to entitle him or any one claiming under him to indemnity or benefits on account of any accident, injury or death received or happened while not in good standing.”

Mr. Bagnell paid his quarterly assessments on or before their due dates, except as follows:

The quarterly assessment due January 5, 1911, and payable February 5, 1911, was paid and receipted by the association March 6, 1911; the quarterly assessment due July 5, 1911, and payable August 5, 1911, was paid and receipted by the defendant association August 8, 1911; the quarterly assessment due July 5, 1915, and payable August 5, 1915, was paid by check dated August 11, 1915, received and receipted by the association August 13, 1915; the quarterly assessment due April 5, 1916, and payable May 5, 1916, was paid by check dated May 24, 1916, received and receipted by the association M.ay 25, 1916; and the quarterly assessment due July 5, 1916, and payable August 5, 1916, was paid by check dated August' 7, 1916, received and receipted by the association August 9, 1916.

An attempt was made to pay the quarterly assessment due October 5, 1916, and payable November 5, 1916. Relative thereto, it appears that Mr. Bagnell on November 3, 1916, had his son-in-law, Willard Hall, draw a check for him, payable to his order, in the sum of $8.90, the amount of the assessment about to become payable. Mr. Hall drew the check, which was dated November 4, 1916, and gave it tp Mr. Bagnell. Concerning this check, counsel for defendant in his brief says Mr. Bagnell “laid it to one side, saying that he would send it with an insurance premium which was then •due. On November 7th, Mrs. Bagnell discovered 'that the check had not been mailed and mailed it to the association without having it endorsed by Mr. Bagnell. The association received the check on November 9th, 1916, and on the same day returned it, asking that it be properly endorsed. On November 10th, Mr. Hall wrote the association ■advising that Mr. Bagnell had died on the morning of November 10th, 1916, and on November 14th, upon receipt of the check so returned for endorsement, Mr. Hall again wrote reciting Mr, Bagnell’s death and enclosed his own check payable to the association for $8.90, which check and letter were received by the association on November 16th and returned by the association on that day with the statement that Mr. Bagnell was at the time of his death delinquent, thereby forfeiting all benefits of the association.”

It further appears that all prior delinquent payments were accepted in payment of the respective assessments by the defendant association without making any inquiries as to, whether Mr. Bagnell was in good health.

The plaintiff claims and contends that the association’s acceptance of the two overdue payments in 1911, and the three overdue payments in 1915 and 1916, without objection and without requiring any evidence of Bagnell’s health, constituted a waiver or estoppel of the defendant association’s, right to enforce a forfeiture on account of the default in the prompt payment of the assessment payable November 5, 1916, and that when the association received the check of Willard Hall, payable to the order of Bagnell, and returned it for proper endorsement, that constituted an acceptance and thereby became and was a payment of the quarterly assessment due October 5, 1916, and payable November 5, 1916; or, if it did not receive same as payment, it showed by its course of conduct relative thereto intention to maintain the contract of insurance in full force and effect, and to waive, as it had previously done, any claim it might have 'had by reason of the failure of Mr. Bagnell to strictly comply with the terms of the contract.

On behalf of defendant it is claimed and contended that when Bagnell became delinquent 'his contract of insurance was ipso facto canceled, and his rights to benefits ceased without the necessity of any notice or affirmative act on behalf of the association, and that the continued membership of Bagnell in the association after his former delinquencies, up to the date of his last assessment, was because the association, under the provisions of its constitution and by-laws, reinstated Bagnell in good standing upon his payments of past-due assessments; and this being a fact, and the record showing Bagnell to have 'been in ill health at the time the Hall check was sent to the association, there could be no reinstatement under the terms of the contract of insurance, and Bagnell forfeited his claim to benefit under the contract.

To this contention of defendant, plaintiff says that Bagnell was never suspended from the association, nor his contract forfeited, and, therefore, there could be no reinstatement; and that the acceptance by the association of his delinquent payments was a waiver of any right the company might have to forfeit the contract.

To support its claim of forfeiture" the defendant cites two Ohio cases: Ohio Farmers’ Ins. Co. v. Wilson, 70 Ohio St., 354, and Union Mut'l. Life Ins. Co. v. McMillen, 24 Ohio St., 67.

■We do not think either of these cases is in point or supports defendant’s claim of forfeiture. In the Wilson case the question decided was that a failure to pay a premium when due, there being no waiver of the provision of forfeiture, would terminate the contract of insurance; furthermore, in the Wilson case, after the loss occurred, a check, in payment of a delinquent premium, was sent the insurance company. The question in the McMillen case turned on the authority of an agent to waive forfeiture. The policy of insurance in that case specifically declared that “no agent of this company, except the president or secretary, can waive* such forfeiture,” and the agent who attempted to waive the provision .of the contract relative to forfeiture had no such authority, expressed or implied.

In the instant case the real controversy is whether the insurer has waived the forfeiture or 'by its course of business with the insured has estopped itself from setting up the forfeiture under the contract.

In the Wilson case, supra, the court says, at page 359:

“As this condition in the policy is made for the protection of the insurer it could be waived; but there is nothing in this case which tends to show a waiver by the insurance company.”

Counsel for defendant say that at the time the former overdue payments were received that Bagnell was in good health. This claim seems to be an unsupported assumption rather than a fact, inasmuch as the record nowhere discloses such.

We are unable to find from the record that there ever has been a breach of this contract of insurance — the defendant association never exercised the provision as to forfeiture, until the receipt of the second Hall check — and we refer to this check as “second” to distinguish it from the unendorsed check the defendant association received and returned for proper endorsement — and we are of the opinion that the purpose of 'the payments of all overdue assessments by Bagnell was not for reinstatement, but for the purpose of complying with his contract of insurance, and that they were received by the association, not for reinstatement, for the record here discloses he had never been suspended and thereby no reinstatement could take place, but were received for the purpose of discharging the original obligation. In case of reinstatement some action must be taken. Section 4 of the constitution - and by-laws of the association provides that it' shall be the duty of the secretary to “report all delinquencies to the board of directors.” This was not doné, and it confirms the foregoing statement that these overdue quarterly payments were made by Bagnell and received by the association for the purpose of complying with the terms of the contract of insurance and discharging the original obligation, and the association having accepted overdue assessments for these purposes thereby waived its right to a forfeiture and is now ■estopped to deny the right of the insured to pay the quarterly assessment, payable November 5, 1916, a few days after the time limit provided by its constitution and by-laws. But it is further ■claimed that Bagnell at the time was not in good health and ipso facto was suspended. With this contention we do not agree. The provisions in the-contract of insurance concerning the health of the insured relate and apply only to cases where there has been a suspension and- a reinstatement thereby became necessary. Bagnell never had been suspended and consequently no reinstatement could take place.

Forfeitures are not favored; they are odious; the law abhors them; and the record does not disclose any conduct' on the part of the defendant association consistent with its present stand — an intention to waive is clearly shown. However, it is -claimed that Bagnell was charged with the knowledge that on November 5, 1916, his benefits ■were automatically forfeited, and that charged with this knowledge he can not now be heard to say that he intended a thing impossible by the terms of his contract. With this claim we can not agree. The -defendant association on two occasions in the year 1911, on one in 1915, and two in 1916 (these in 1916 being for two quarterly assessments immediately preceding the assessment now in question), by accepting overdue payments had in substance said to the insured, Mr. Bagnell, or at least by its conduct had led him to believe, •that his contract was in full force and effect and that no forfeiture “will hereafter be incurred if you continue to pay your assessments within a reasonable time after they become payable;” and because of this conduct we hold the defendant waived its right to declare a forfeiture of this policy by reason of the failure to pay within thirty days from October 5, 1916.

Moreover, as we understand it, the law is to be administered for the purpose of -doing exact and equal justice'to all in so far as it may be possible; and can it be said that, under all the facts and circumstances disclosed by the record in this case, it is right, just and fair for this -court to now say to the defendant association, “It is true you have heretofore by your course of dealing with the plaintiff’ led him to believe you would not insist upon the strict compliance with the terms of his contract of insurance, but now that his beneficiary is about to reap the benefit thereof you can insist and have a strict interpretation and compliance therewith” ? In other words, shall this court now do for the defendant association what it did not do and would not do for itself during the life of Bagnell?

There is a great deal of law bearing upon the questions here presented, and it has. been cited in the briefs of counsel, and counsel have very fully and ably presented it in oral argument. We can not take the time -to review all these authorities; however, those upon which we chiefly rely in arriving at our conclusions, and that seem most directly in point and sustain our views', are the following cases:

O’Connor v. Knights & Ladies of Security, 178 Ia., 383, 158 N. W. Rep., 761; Knickerbocker Life Ins. Co. v. Norton, 96 U. S., 234; Swander v. Northern Cent. Life Ins. Co., 1 C. C., N. S., 233, and National Life Ins. Co. v. Tullidge, 39 Ohio St., 240.

There being no conflict in the evidence, the facts not being controverted, not in dispute, there consequently- remained nothing for the trial court but to apply the law; we are therefore of the opinion, both upon principle and authority, that the court below did not err in directing the jury at the close of all the testimony to return a verdict for the plaintiff and in entering judgment thereon.

Therefore, the judgment of the court of common pleas will be affirmed.

Judgment affirmed.

Grant and Dunlap, JJ., concur.


author: Richards, J.

text:
    The W. C. Pressing Canning Co. v. Weller.

      Error proceedings — Final order — •Default judgment for damages — Jury trial ordered — To ascertain and assess amount thereof.

    A judgment by default in an action for damages, finding that the plaintiff is entitled to recover damages, and ordering that the cause be sent to a jury to ascertain and assess the damages, is not a final order or judgment to which error can be prosecuted.
    (Decided June 29, 1918.)
    Error: Court of Appeals for Lucas county.

      Messrs. Rhoades & Rhoades and Mr. G. Ray Craig, for plaintiff in error.

      Messrs. Taber '& Daniells, for defendant in error.
   Richards, J.

Plaintiff below, defendant in error here, brought an action in the court of common pleas to recover damages and' for a-n attachment; the court of common pleas sustained the attachment, to which judgment error was prosecuted to this court and the judgment sustaining the attachment was reversed and the attachment discharged. While that proceeding in error was pending in this court plaintiff secured in the court of common pleas the entering of a judgment by default, in the following terms:

“This matter coming on to be heard upon the petition, the court finds that an attachment was issued and levied herein upon the property of the defendant in Lucas County, Ohio, and that said property was appraised and valued at $1,582.95, and that said property is now held by the sheriff of Lucas County, Ohio, under & by virtue of said • attachment.
“The court further finds that the defendant is in default for answer or demurrer, and that the allegations of the petition are confessed by defendant to be true, and that plaintiff is entitled to recover damages from defendant.
"It is therefore ordered that this cause be sent to a jury to ascertain and assess said damages, and that the Sheriff of Lucas County, Ohio, proceed as upon execution to advertise and sell the personal property hereto attached to pay said damages.”

It will be observed that no damages were assessed, but that the cause was directed to be sent to a jury to ascertain and assess the damages, and in fact no damages have as yet been assessed. Shortly after the entering of the above-quoted order, plaintiff in error, The W. C. Pressing Canning Company, filed a petition in error in this court to reverse the alleged judgment, on the grounds that it had never been served with summons or process, had never entered its appearance, and that the court of common pleas had never acquired jurisdiction over it'. The only question in this case is whether the entry made in the court of common pleas is a final order or judgment, which will authorize the prosecution of a proceeding in error.

Section 12258, General Code, defines • a final order as follows: which may be vacated, modified, or reversed as provided in this title.”

“An order affecting a substantial right in an action, when in effect it determines the action and prevents a judgment, * * * is a final order

We are of the opinion that where a default is taken in an action to recover damages, and the cause directed to be sent to a jury for the assessment of damages, this is not a final order determining the action within the meaning of the section above quoted, and that error will not lie to procure a reversal of such order until after the damages shall have been assessed by a jury and a judgment rendered therefor. So far as we are aware our supreme court has not directly passed on this question in any reported case, but the views of the court have been expressed in the ■course of the opinions in several cases. In the case of Towner v. Wells et al., 8 Ohio, 136, 141, the court uses this language:

“Further proceedings were necessary to be had before the right's of the parties could be ascertained, or before execution could be issued. It may properly be assimilated to a judgment, by default or on . demurrer, where a subsequent inquiry of damages is necessary. Such judgments are merely interlocutory, and can not operate as liens upon the lands and tenements of a defendant.”

Also, in Teaff v. Hewitt, 1 Ohio St., 511, the court held that an interlocutory decree is one which leaves some material question open for future determination.

See also Kelley v. Stanbery et al., 13 Ohio, 408, 421, to the same effect.

In the case of Kerosene Lamp Heater Company v. Monitor Oil Stove Company, 41 Ohio St., 287, 292, the court say in the course of the opinion:

“When a cause is retained for reference to a master, for the purpose of ascertaining a material fact, the decree is interlocutory only, and does not become final until the whole merits of the cause have been disposed of and nothing remains for the further action of the court.”

We call attention to the unreported case of Arbuckle v. American Belting Company, 91 Ohio St., 415, in which the supreme court vacated the judgment of the court of appeals on the ground that it had not acquired jurisdiction of the case, there never having been any final order or judgment in the court of common pleas; and the supreme court remanded the case to the court of common pleas with instructions to proceed according to law to assess the amount of damages. While the brief memorandum of that case does not disclose the nature of the action, we have been favored by counsel in the case with a copy of the printed record, from which it appears that the action in the court of common pleas was one to recover damages, and that a default entry was made and entered finding the allegations of the petition to be true and upon the pleadings plaintiff was “entitled to damages, the amount thereof to be assessed by a jury upon the further hearing of this case.” And the court considered that the plaintiff should recover damages to be assessed by a jury to be thereafter impaneled. The printed record in that case also discloses that the court of appeals held that the entry did not amount to a final order or judgment, but was an interlocutory order only.

Of course, it would follow, that if there were no final order, then the court of appeals should have dismissed the petition in error for want of jurisdiction; but that court proceeded to adjudicate certain other matters between the parties, not necessary to be here stated, and for that reason the supreme court, finding that' no final order or judgment had been rendered in the court of common pleas, vacated the order of the court of appeals and ordered that the damages should be assessed by a jury. This holding we deem to be conclusive on the case now at bar. The decision of the supreme court was in accordance with the doctrine as stated in the textbooks, notably 1 Black on Judgments (2 ed.), Section 28, where the rule is stated in the following language:

“The rule in regard to a judgment by default is, ■that if such' a judgment is rendered for a fixed and liquidated sum, or if the amount can be ascertained by mere calculation from the pleadings, it is final; but if the amount of the recovery or damages remains to be ascertained by a writ of inquiry or other judicial method of computation, then the judgment is merely interlocutory, until such amount is settled and entered on the record.”

See also 3 Corpus Juris, 607.

The supreme judicial court of Massachusetts, in Riley v. Farnsworth, 116 Mass., 223, held that a judgment for the plaintiff in an action for damages for breach of contract, without assessing damages, was not a final order, and that an appeal would not lie therefrom.

It follows from what has been said that the original action in the court of common pleas being for damages, and the damages not having been yet assessed, a mere entry of default ordering that the case be sent to a jury to assess damages is not a final order or judgment and that the proceeding in error in this court to reverse the same must be dismissed. .

Petition in error dismissed.

Chittenden and Kinkade, JJ., concur.


author: Middleton, J.

text:
    In re Estate of Kerns.
    (No. 915
    Decided April 13, 1950.)

      Mr. Meade C. Robinson and Mr. Paul T. Mahon, for appellant.

      Mr. Howard A. Traul and Mr. Norman C. Carey, for appellees.
   Middleton, J.

This is an appeal on questions of law from a judgment of the Probate Court of Logan County, sustaining exceptions to the schedule of debts filed by the administrator of the estate of Mabel E. Kerns, deceased.

The claim of The Belle Center Bank Company was allowed by the administrator as a secured claim and it was to this classification of the claim that exceptions were filed by unsecured creditors of the estate. The allowance of the claim of the banking company as a secured claim was on the assumption that the banking company had a lien by virtue of a levy of execution.

The parties do not disagree as to the facts.

The Belle Center Bank Company, on May 7, 1948, recovered a judgment in Hardin county against S. W. Kerns and Mabel E. Kerns for $8,081.18, with interest and costs, and execution was immediately issued to the sheriff of Logan county. At that time, S. W. Kerns was a patient in White Cross Hospital in Columbus, and his wife, Mabel E. Kerns, was assisting in his care. Mr. Kerns died on June 5, 1948, and Mabel E. Kerns was appointed administrator of his estate on June 11, 1948.

Deputy sheriff McAdams testified that he took the execution of the bank to Belle Center to make a levy on the hardware store conducted by S. W. Kerns, and that upon his arrival in Belle Center he went to the hardware store which was “closed down” when he got there. He left the store and went to the home of a friend where he had his dinner and while there learned of the illness of S. W. Kerns. He called the son of S. W. Kerns by telephone and told him he had an execution on the store and that “we must close the store up” and asked the son whether he would agree to close the store. The son'agreed to close the store. A day or two later the deputy sheriff returned to Belle Center and saw that the store was closed. Thereafter, the stock of merchandise upon which the levy was attempted was sold by the administrator and not by the sheriff on execution.

The foregoing is substantially the testimony of the deputy sheriff.

William S. Kerns, the son with whom the deputy sheriff talked by telephone, stated that .a few hours after this conversation with the deputy he returned to the store, soaped the windows, and took the key of the store to the Belle Center bank, the judgment creditor. The key was not delivered to the sheriff and he did not know that it had been delivered to the bank.

The question presented is whether a valid levy was made upon the stock of hardware by the deputy sheriff.

To constitute a valid levy, it must be shown, first, that there was an intent on the part of the execuiion officer to control the property, second, that the officer had power to exercise such control, and, third, that there was a taking of possession of such property.

“The law has prescribed to the execution officer no special forms or detailed methods of procedure. Sup-, posing the authority of the officer to make the levy to be complete, the question as to what constitutes a valid levy on personal property seems to depend upon the combined results of the circumstances of each particular case, rather than upon the existence or nonexistence of any one particular circumstance which properly may, or usually does, accompany, evidence, or form a part of the act of making a levy. In general it may be said that, to constitute a valid levy of execution upon personal property, the officer must interfere with the possession of the property in such manner that he would be amenable to an action for trespass were it not for the protection afforded him by the writ.” 17 Ohio Jurisprudence, 795, Section 116.

In order to make a valid levy on personal property, the execution officer must reduce the property to iiis power and control or at least have it within his view, and then within a reasonable time take possession in such manner as to apprise everybody of the execution. 2 Bouvier’s Law Dictionary, 1937.

“The sufficiency of a levy on personal property depends largely on the circumstances of each case, the applicable statutes if any, the character of the property levied on, and the status of the person challenging its sufficiency.” To constitute a valid levy the officer must reduce the property to possession or bring it within his immediate control. The execution officer must assert his right to the personalty by virtue of the execution by clear and unequivocal acts or declarations. Moreover, the sufficiency of a levy depends on what is done, rather than the intent with which it is done. It is not sufficient for the officer to announce that he is at, the place for the purpose of making a levy. 33 Corpus Juris Secundum, 242, Section 97.

In the instant case it was the intent of the deputy to control the property, but he failed to follow up his intent by taking possession.

The record fails to show the existence of acts or conduct by the deputy sheriff necessary to constitute a valid levy.

The execution creditor secured no lien by virtue of the attempted levy by the deputy sheriff, and the judgment of the court below was proper.

The judgment of the court below is affirmed.

Judgment affirmed.

Guernsey, P. J., and Jackson, J., concur.


author: Thompson, J.

text:
    Hutchinson, Admx., Appellant, v. Laughlin, Jr., Appellee.
    (No. 22138
    Decided May 28, 1951.)

      Mr. Fred H. Mandel, for appellant.

      Messrs. McKeehcm, Merrick, Arter & Stewart, for appellee.
   Thompson, J.

This cause comes to this court on appeal on questions of law from the Common Pleas Court. The action in the Common Pleas Court was for malpractice, as a result of which it was claimed that plaintiff’s decedent met his death. The case was tried to a jury of twelve, commencing on Friday, September 22, 1950. Defendant rested his case on September 27, 1950. Arguments to the jury were made on September 29, 1950, and a verdict was returned that day in favor of the defendant. The verdict was signed by the minimum number required in a civil case, namely, nine of the twelve jurors. One of the nine jurors who signed the verdict was the foreman of the jury.

Within ten days after the verdict and judgment, the plaintiff filed a motion for new trial on the grounds of misconduct of the jury and irregularity in the proceedings of the court and jury. An oral hearing before the trial judge was had on the motion for new trial. At that hearing counsel for plaintiff summoned the foreman of the jury and two of the three members of the jury who had failed to sign the verdict, for the purpose of establishing misconduct of the jury and irregularity in the proceedings.

Upon examination by counsel for plaintiff, the first of the jurors who had failed to sign the verdict testified as follows with respect to the foreman’s actions in the jury room during the deliberations of the jury:

‘ ‘ To the best of my recollection, we had a first vote— I don’t know whether I am justified in bringing that out here or not — Mr. Vosburgh did bring up the question — he said, ‘ I am sort of an astrologist, ’ he said, ‘ I am a bug on this,’ and he said, ‘I have consulted an astrologist with the date and the birth and the time that the deceased was brought to the hospital to be operated on.’ And he says, ‘According to the stars,’ or the moon — I just don’t recollect the exact words he used, he said, ‘the doctor had two strikes against him in operating at that time on the man.’ He did say, ‘I don’t want this to impress you fellows with your thought, but,’ he said, ‘it is just one of those things,’ he says, ‘that I believe in.’
“Q. And how soon after he made those statements was the vote taken to sign the verdict? A. Oh, I would say in the neighborhood of ten or fifteen minutes.”

The second juror interrogated by counsel for plaintiff testified to actions of the foreman during the deliberation of the jury, as follows:

“A. Well, this I suppose, happens in all jury rooms; he told of experiences, or talked about things, particularly of his own experience, and he mentioned that he believed in astrology, or words to that effect; and he didn’t want it in any way to influence any one or anything ; and he would like, or discussed it a little bit and told about how he had done a little research on how it would affect the doctor, and how the different dates of birth and dates of the operation, how they would have involved the doctor, or how they might have influenced him, if he had been a believer of astrology; and be just discussed it a little bit that way; just made a little talk in which we all listened and that was all. ’ ’

The foreman, himself, when examined by plaintiff, testified:

“A. * * * in the further discussion, as foreman of the jury, I called for all the discussion that we could get; I said, ‘We want every one to express themselves in any way, with any information that they feel might have a bearing upon the case. Anything can be helpful.’ And then I said, ‘Now, there is something from my own standpoint, that you can take it or — only for what value it may be to you. You can call me a crackpot or anything that you want, but I have some experience and observation upon which I can base the facts that I am about to enumerate, ’ and I mentioned the fact that I had delved somewhat into the study of astrology, from the standpoint, at least, of the medical, the standpoint of operations, that is, their fundamentals, to this effect: That you must never touch that part of the body with a knife, if the moon is in the sign that rules that part of the body. Now, that is an old axiom of the medical profession, going back to Hippocrates. And I took occasion after I had been drawn into this case just to satisfy myself, I took occasion to look up the planetary conditions which prevailed in that respect, at the time of this operation, and I found that the conditions there were very adverse. In other' words, a doctor — and many doctors do observe the astrological conditions. I can tell you of cases right here in Cleveland, of leading surgeons that have called competent astrologers to get information before going ahead with operations; so that there are those that put a great deal of importance upon this. And no doctor that observes the astrological conditions at the time would have considered that a good time for an operation of that particular nature. And I based it, not from the standpoint to in any way influence the jurors — I said, ‘This is only an observation that I have made, based upon my particular knowledge and investigation in that field, and that you should take it for only such value as it may have to you. ’
“Q. Yes, I understand. Well, as a result of this research that you have made, Mr. Vosburgh, did that determine your verdict in this case? A. Absolutely not.
“Q. What significance did that research have to you? A. It was only an amplification, a further confirmation of other facts in the case.
( C * * #
‘ ‘ Q. And you had made this research or study, you say, within a day or so after you started the case? A. Yes. Yes, at the time after I had been drawn in the case, I was on the jury and I had learned the facts of the case. To satisfy myself I looked it up, and no mention had ever been made of that fact until we were in the jury room and had progressed as far as we had. ’ ’

Upon cross-examination, the foreman testified that he was influenced by the evidence in the case, and that, if he had not possessed what he had considered additional valuable information bearing upon the case, his own thought would still have been the same. Subsequently, after re-cross-examination of the foreman, the court interrogated this witness as follows:

‘ ‘ The court: In your study of astrology, supposing the doctor had performed the operation on a date that was right, astrologically speaking, do you think the operation would have had a better chance of being successful than on another date.
“The witness: Well, obviously, the operation might have had a better chance of being successful, but, of course, even then it wouldn’t be a guarantee.
“The court: You know that people have died as a result of an operation even though they were operated on on dates of astrological correctness ?
“The witness: Yes. Yes, I had a secretary that worked right up until the date she went into the hospital for a certain type of operation, perfectly healthy, nothing wrong with her — she never left the hospital, and as we discovered later, the operation was performed at the wrong time.
“The court: You mean astrologically?
“The witness: Yes.
“The court: Do you think she would have lived if it had been performed at the right time?
“The witness: It would be my opinion that she would.”

At the conclusion of the testimony, the court permitted counsel to file briefs on the matter of a new trial, based on the testimony. Subsequently, the court overruled the motion for a new trial.

Counsel for plaintiff has appealed on questions of law to this court. A bill of exceptions was filed, setting forth the testimony offered upon the motion for a new trial, but none of the evidence adduced at the original trial was included. The only assignments of error for this court to consider are whether there was misconduct of the jury, or irregularity of proceedings sufficient to have required a new trial.

It will be observed that the question for decision is whether the jury’s verdict in this case can be impeached, under any circumstances, by evidence obtained from members of the jury only, or whether the facts in this case are sufficiently extraordinary so that this court should hold that there was such misconduct of the jury as to warrant a new trial, and whether there was an abuse of discretion by the trial court in refusing to grant a new trial.

This court has examined the various authorities cited by counsel in this case. The general principle, long established and accepted at common law from the time of the English case of Vaise v. Delaval, 1 T. R., 11 (K. B.), 99 Eng. Rep. R., 944, decided by Lord Mansfield in 1785, has been that the verdict of the jury may not be impeached by the testimony or affidavits of a member or members of the jury rendering the verdict, unless there is evidence aliunde impeaching the verdict.

In 8 Wigmore on Evidence (3 Ed.), Section 2354, the authorities in support of this proposition are collected and the author points out that this principle has been very generally accepted. The author refers to only four or five states which have departed therefrom. Wigmore declares that “in Ohio there is some doubt” as to acceptance of the general principle, but the learned author does not, even in his 1949 pocket supplement, cite any recent Ohio cases nor does he address himself to any of the more recent decisions which, in our opinion, leave no doubt as to the law in this state as announced by the Supreme Court of Ohio, and followed in numerous decisions. We shall not attempt to cite all the Ohio eases, but we believe the principle involved is so important that we desire to call attention to some of the more recent pronouncements which appear to us to make the law in Ohio abundantly clear.

In the case of Schwindt v. Graeff (1924), 109 Ohio St., 404, 142 N. E., 736, the Supreme Court held that the rule, that the verdict of a jury may not he impeached by evidence of a member of the jury, is a common-law rule founded upon public policy. The fact that a juror offering such impeaching evidence does not join in the verdict does not except such evidence from the operation of the rule. The court in its syllabus declared that the legislature, and not the courts, is empowered to modify or abrogate the rule. In that case, an affidavit of one of the jurors alleged that at a time when the jury was divided 8 to 4, a juror, who was one of the four, stated he was going to toss a coin and if the figure of the head was on top he would continue to vote as before in favor of plaintiffs and if the coin fell with the other side up he would change his vote and vote in favor of the defendants. He then flipped the coin and it fell with the head up. When the next ballot was taken the vote remained the same. Subsequently the same juror laid down three quarters, stating that if two of the three heads were up he would change his vote and vote with the majority, and if two were otherwise he would continue to vote as before. According to the affidavit, two heads were up, and, on taking the next ballot, the defendants received one more vote which gave them nine votes, a sufficient number to authorize the return of a verdict in favor of the- defendants. Such verdict was then returned, signed by'the nine jurors, including the one who had flipped a coin. The affidavit was thereafter presented in support of a motion for a new trial. The motion was overruled and judgment entered on the verdict. Error was prosecuted to the Court of Appeals, which affirmed the judgment of the Common Pleas Court. Error having been prosecuted to the Supreme Court of Ohio, the latter court decreed it to be public policy that the deliberations and conduct of the jury while in the jury room should not he the subject of judicial investigation upon tbe evidence of tbe jurors alone. The court declared that the particular case before it presented a situation which strained the rule almost to the breaking point, but added that so long as we are to continue to be governed by laws, rather than by men, a rule must be adhered to which is designed to accomplish justice in the greatest number of cases. It is true that a dissenting opinion in that case by two judges indicated disagreement with the opinion of the court, but later cases in Ohio have accepted that case and have expressed the belief that the principle should be adhered to. In that case, the conduct of one of the jurors signing the verdict was glaringly improper for he appears to have substituted for his own views the rules of chance, but the court felt the principle of sanctity of jury deliberations required protection.

In the case of Emmert v. State, 127 Ohio St., 235, 187 N. E., 862, 90 A. L. R., 242, Judge Bevis, rendering the opinion of the court, declared that the rule that jurors’ testimony alone cannot be received to show misconduct of jurors in the jury room has persisted for more than three-quarters of a century, and he pointed out that the courts have adhered to the rule on grounds of public policy, fearing that the abrogation of the rule would entail consequences worse than does its enforcement. The Emmert case recognized one exception to the general rule, permitting affidavits or testimony of jurors to prove unlawful communications made to members of the jury by court officers or others outside the jury room but during the period of the jury’s deliberations. In that case, the Supreme Court reversed the judgment of the Court of Appeals which had affirmed the judgment of the trial court, the trial judge upon motion for new trial having refused to hear evidence of jurors indicating that the bailiffs in charge of the jury had had unlawful communication with some of its members. That case supports the principle that the testimony of jurors shall not be used to impeach the verdict unless there is evidence aliunde as to misconduct.

Our difficulty in the instant case is in finding that there was.any evidence aliunde establishing misconduct of the jurors. No testimony was offered except that of the jurors themselves. The testimony in this case as to the conduct of the foreman gives us concern. But we are not prepared to say that we will upset the wise principle that the verdict of a jury may not be impeached by testimony of the jurors unless there is evidence aliunde as to misconduct.

In the present case, it may be pointed out that no evidence was offered by the two jurors, who refused to sign the verdict, that any of the members of the panel were influenced by the foreman’s beliefs in astrology, and the foreman’s own testimony as to the effect of his independent investigation was merely an amplification or “ a further confirmation of other facts in the case.”

We have given careful thought to the question whether the independent investigation on the part of the foreman as to the planetary conditions, which was apparently conducted outside the jury room, could, under any circumstances, be considered the evidence aliunde sufficient to take this case out of the rule. We do not believe, at least in the absence' of corroborating testimony of persons outside the jury as to any such independent investigation, that this could be so considered, much as we disapprove of the thought of the possibility of jurors making independent research or investigation during a trial to supplement testimony before them. In this connection, however, we find almost this precise situation occurring in the most recent pronouncement of the Supreme Court of Ohio which has come to our attention. In the case of Wicker v. City of Cleveland, 150 Ohio St., 434, 83 N. E. (2d), 56, which was an appeal from the Court of Appeals of this district, the plaintiff had sued in the Municipal Court of Cleveland to recover damages for injuries she claimed to have sustained when she alighted from a streetcar and stepped into a hole in the pavement in a safety-zone maintained by the city of Cleveland. A unanimous verdict was rendered for the city by a jury of six. Upon motion for new trial, error was alleged on the ground of misconduct on the part of one member of the jury. It appeared that one of the women on the jury, during the pendency of the trial, visited the scene of the accident, which was within a block or two of the courthouse, and reported to the other jurors that there was no hole in the pavement. The trial court overruled the motion for new trial and held the testimony of the juror inadmissible to impeach the verdict of the jury, in the absence of evidence aliunde as to what had taken place in the jury room.

The Supreme Court of Ohio, affirming the judgments of the trial court and the Court of Appeals, declared as follows:

“This question has been before this court in numerous cases, and the decisions are summarized as follows in 39 Ohio Jurisprudence, 1110, Sections 382 and 384:
“ ‘It is a long established and a generally accepted doctrine, founded upon the “wisest reasons,” of public policy, rather than upon any doctrine of estoppel, that the verdict of a jury may not be impeached by the testimony or affidavits of a member or members of the jury rendering the verdict, unless there is evidence aliunde impeaching the verdict. ’
it* * #
“ ‘The policy of the law forbidding the impeachment of the verdict by affidavits of the juror is particularly exemplified when the attempt is to prove misconduct of the jurors while engaged in their deliberation, or for the purpose of showing improper motives or fraudulent or improper conduct of members of the jury.’ ”

We wholly agree with the analysis of the so-called juror’s privilege and the exceptions thereto recognized by Mr. Justice Cardozo in Clark v. United States, 289 U. S., 1, 77 L. Ed., 993, 53 S. Ct., 465, a case cited by counsel for appellant. That decision concerned the question of privilege in a criminal prosecution of a juror for contempt (1) for false representations and concealment on voir dire, and (2), after being seated as a juror, for deliberately impeding other members of a jury and preventing a verdict. Instead of being a case in which the court recognized the right to impeach a jury verdict by testimony of a juror, that case involved facts in which no verdict was ever reached and the decision is therefore not germane to the precise question here before us.

In reaching our conclusion in the instant case, we reaffirm the wisdom of the rule against impeachment of the verdict of a jury by testimony of one of its members, unless corrobating testimony is produced from sources other than the deliberations in the jury room. This time-hallowed rule of common law is founded in common sense which should have strong present appeal. If we were to disregard this traditional principle or to undermine it by successive or progressive exceptions, we should be contributing to the undermining rather than the strengthening of our jury system, which, despite its occasional demonstrations of human frailties, remains one of the bulwarks of protection for free men today. Jurors, after completion of their duties at the courthouse, would be increasingly importuned and harrassed in their homes after their deliberations were terminated and, instead of acceptance being the usual sequel to a verdict, visitation of jurors would tend to become the necessary practice of diligent counsel. Jurors would likewise be placed on the defensive because of their casual opinions and hampered in their free discussion in the jury room. The obtaining of public-spirited citizens to serve as jurors would become more difficult than at the present time.

In stating these beliefs we wish to add that counsel in the present case have been most helpful to the court. We cannot approve, and we in no way wish to countenance, the conduct of experiments or independent investigations by jurors during the course of their deliberations, for they are required in the case before them to obtain their facts from the sworn testimony of witnesses and their law from the trial judge.

It is unfortunate that in the application of any general rule there are inevitably individual cases such as this one in which the rule may appear harsh.

In affirming the judgment of the trial court, we base our decision on the more recent cases decided by the Supreme Court of Ohio, which we have referred to and which appear to us to be thoroughly sound.

The judgment of the Common Pleas is affirmed.

Judgment affirmed.

Skeel, P. J., and Hurd, J., concur.


author: Fess, J.

text:
    In re Estate of Salisbury.
    (No. 4520
    Decided March 26, 1951.)

      Mr. Harley A. Watkins, for appellee.

      Mr. C. William O’Neill, attorney general, and Mr. Robert E. Leach, for appellant.
   Fess, J.

The state of Ohio appeals on questions of law from an order of the Probate Court finding a bequest to an endowment fund of a church exempt from the Ohio inheritance tax.

Under the provisions of item III of the first codicil of the will, one-third of the residue of the testator’s estate was bequeathed as follows:

“To the Endowment Fund of The First Congregational Church of Toledo, Ohio, in perpetuity, the annual income therefrom to be annually appropriated, expended and used solely for the charitable purposes of said in'stitutiq'n. ’ ’

Item IY of the testator’s will had previously bequeathed one-half of the residue to The First Congregational Church of Toledo, Ohio, without limitation, restriction, or further designation of use or purpose. The value of the one-third of the remainder bequeathed by the first codicil was, for inheritance tax purposes, determined to be $6,270.88. There were a number of other bequests in the will and first codicil to individuals and institutions, but the bequest to the endowment fund of The First Congregational Church of Toledo is the only one involved in the exceptions of the Department of Taxation on this appeal, and was the only one involved in the hearing in the Probate Court.

The exceptions of the Department of Taxation to the determination of inheritance tax by the Probate Court were submitted to the Probate Court upon an oral stipulation between counsel for the Department of Taxation and counsel for the estate. The oral stipulation is set forth in full in the journal entry filed in the Probate Court overruling the exceptions and finding that the succession in question was exempt from inheritance tax under Section 5334, General Code, as property passing to and for the use of an institution for purposes only of public charity carried on in substantial part within the state of Ohio.

The pertinent part of the stipulation, as set forth in the journal entry, is as follows:

* * that said The First Congregational Church of Toledo, Ohio, is a corporation duly organized and existing under and by virtue of the laws of the state of Ohio and having its place of business in the city of Toledo, Lucas county, Ohio, and that substantially all of its activities are carried on within the state of Ohio; that said The First Congregational Church of Toledo, Ohio has for many years past and still continues to carry on activities and benevolences consisting of pub-lie charity, such as aid to certain colleges within and without the state of Ohio, sponsoring of local boy scont troop and of local girls’ clubs and offering relief and reconstruction to the resident needy and giving financial assistance for the work of the Toledo Council of Churches, Toledo, Ohio; that said activities are carried on without respect to the beneficiaries and participants being members of either The First Congregational Church of Toledo, Ohio, or without respect to the beneficiaries being members of any Congregational Church, and irrespective of church affiliation; that Dora B. Salisbury, testator, had been a member of said church for many years and had been a regular and consistent contributory to the benevolences of said church and to the general budget of said church. ’ ’

The court further found, as set forth in the journal entry, as follows:

“ * * * that it was the intention of said testator that the annual income of said fund bequeathed by testator’s will to said church endowment fund should be annually appropriated, expended and used solely for the public charitable purposes of said church and for no other purposes, and that it would be a violation of said bequest to use the same for any other purpose, that the ‘said institution’ referred to in said above quoted part of said item III of said codicil is The First Congregational Church of Toledo, Ohio, and not the ‘endowment fund’ therein named, and that such was the intention of said testator; and, that said bequest qualifies for exemption from inheritance tax under and by virtue of Section 5334, General Code of Ohio, as being property passing to and for the use of an institution (The First Congregational Church of Toledo, Ohio) for purposes only of public charity carried on within the state of Ohio; and, that said exceptions are not well taken and should be overruled.”

The pertinent portion of Section 5334, General Code, relating to exemptions, provides:

“The succession to any property passing * * * to or for the use of an institution for purposes only of public charity, carried on in whole or in substantial part within this state, * * * shall not be subject to the provisions of the preceding sections of this subdivision of this chapter * * *.”

At the outset we are confronted with the rule that one seeking to have property exempted from taxation has the burden of showing that such property comes squarely within the exemption provisions of the organic law or a valid statute. Tax Commission v. Paxson, Admr., 118 Ohio St., 36, 160 N. E., 468; In Re Estate of Taylor, 139 Ohio St., 417, 40 N. E. (2d), 936; Crown Hill Cemetery Assn. v. Evatt, Tax Commr., 143 Ohio St., 399, 55 N. E. (2d), 660; Welfare Federation of Cleveland v. Glander, Tax Commr., 146 Ohio St., 146, 64 N. E. (2d), 813; Battelle Memorial Institute v. Dunn, Aud., 148 Ohio St., 53, 73 N. E. (2d), 88; Cleveland Osteopathic Hospital v. Zangerle, Aud., 153 Ohio St., 222, 91 N. E. (2d), 261.

The claim of exemption “must rest upon language in regard to which there can be no doubt as to the meaning, and the exemption must be granted in terms too plain to be mistaken.” Tax Commission v. Paxson, Admr., supra, at page 41.

Is the conclusion of law that the bequest is exempt from inheritance tax supported by the conclusions of fact set forth in the journal entry? In reaching that conclusion the Probate Court construed the terms of the bequest and found that it was the intention of the testator that the income of the fund should be used solely for the public charitable purposes of the church, thereby reading into the bequest the word, “public,” and thereby limiting the bequest for charitable purposes to public charitable purposes.

When a gift by will is made in unambiguous language which, by legal construction, has been accorded a definite and settled meaning, parol evidence is not admissible to show that the language used does not express the testator’s true intent. Townsend’s Executors v. Townsend, 25 Ohio St., 477; Foster v. Clifford, Exr., 87 Ohio St., 294, 101 N. E., 269, Ann. Cas. 1915B, 65; Sommers v. Doersam, 115 Ohio St., 139, 152 N. E., 387; Steinbrenner v. Dreher, 140 Ohio St., 305, 310, 43 N. E. (2d), 283.

The language employed by the testator does not require construction because it is plain and unambiguous. We are required, however, to determine the meaning of the word, “charitable.” Appellant contends that the word, “charitable,” embraces so-called private charity and relies upon the following authorities :

Tax Commission v. Paxson, Admr. (1928), supra, involving succession tax on a trust wherein the trustees were to be the sole judges as to the persons entitled to the benefits of the fund.

Tax Commission v. Security Sav. Bk. & Tr. Co., 117 Ohio St., 443, 159 N. E., 570, involving taxability of a trust created for the purpose of dispensing charity only to aged Master Masons or superannuated clergymen.

Morning Star Lodge, No. 26, I. O. O. F., v. Hayslip, Treas., 23 Ohio St., 144, involving taxation of lodge funds held for relief to a limited class of persons.

Cleveland Trust Co., Exr., v. Tax Commission, 33 Ohio App., 323, 169 N. E., 579, involving succession lax where, under the terms of a will, a fund might be given to a so-called private charity.

In re Estate of Weld, 71 Ohio App., 497, 50 N. E. (2d), 275, where a gift to the Salvation Army was taxed because it could be used for religious as well as charitable purposes.

In those cases the court looked to the nature of the institution or the purpose for which the fund might be used and concluded either that the legatee was not a charity or that the fund might be used for noncharitable purposes. In the instant case the bequest is to be used solely for the charitable purposes- of the church.

According to the dictionary, the word, “charity,” has a number of broad connotations, such as “love,” “good will,” “leniency,” etc., but the words, “charitable gift,” at law mean a gift of property to the use of the public or any indefinite portion of the public (as distinct from specific individuals) for any beneficial or salutary purpose. Such a gift creates a charitable use or trust for the public benefit and has an indefinite or undetermined number of beneficiaries. The terms, 4 ‘ charitable trust, ’ ’ and,4 4 public trust, ’ ’ are synonymous. A so-called private charity is neither a “charity” nor a “charitable trust.” It is a “private trust.” First National Bank v. Boyd (Texas 1945), 188 S. W. (2d), 199, 207; Clevenger v. Rio Farms, Inc. (Texas 1947), 204 S. W. (2d), 40, 44; Cf. In re Hamilton’s Will, 270 App. Div., 634, 63 N. Y. Supp. (2d), 265; People, ex rel. State Board of Charities, v. N. Y. Soc. for Prevention of Cruelty to Children, 42 App. Div., 83, 58 N. Y. Supp., 953, 955; Smith v. Havens Relief Fund Soc., 44 Misc., 594, 90 N. Y. Supp., 168; In re Altman’s Estate, 87 Misc., 255, 149 N. Y. Supp., 601; Kronshage v. Varrell, 120 Wis., 161, 97 N. W., 928.

As indicated above, at law the word, 4 4 charitable, ” imports “public charity,” but in construing a will, the words of a testator are to be construed in accordance with their ordinary use and meaning unless it appears from the context and other provisions of the will that the testatof used them in a different sense. It is presumed that the testator used the words in his will in their primary and ordinary sense. Albright v. Al bright, 116 Ohio St., 668, 157 N. E., 760; Anderson v. Gibson, 116 Ohio St., 684, 157 N. E., 377, 54 A. L. R., 92. In its ordinary sense, the word, “charitable,” as used by the testator is not limited to public charity.

In Section 5334, General Code, the word, “public,” appears six times, and, in using the words, “public charity, ’ ’ it may be inferred that the General Assembly intended to emphasize the exclusion of general charitable purposes in the interest of avoiding any claim that successions passing to institutions organized for such purposes should be exempt. Furthermore, the phrase, “for purposes only of public charity,” is descriptive of the nature of the “institution” rather than a limitation on the “use” for which the succession passes. Therefore, in order to qualify for the exemption, the church must qualify as an “institution for purposes only of public charity.” In re Estate of Taylor, supra.

In Morning Star Lodge, No. 26, I. O. O. F., v. Hayslip, Treas., supra, the Supreme Court held that a charitable or benevolent association which extends relief only to its own sick or needy members and their widows and orphans is not “an institution of purely public charity.” In Tax Commission v. Security Savings Bank & Trust Co., supra, the court was unable to draw a distinction between “an institution for purposes only of public charity” and “institutions of purely public charity.” It might be contended that the Supreme Court meant there was no distinction between “purposes only of public charity” and “purely public charity,” but the language employed in the opinion seems to indicate that the criterion is the nature of the institution rather than the purposes for which the bequest is made.

We are therefore forced to conclude that the facts found by the Probate Court do not bring “the charitable purpose” of the cburcb or its endowment fund within the terms of Section 5334, General Code, as “an institution for purposes only of public charity.”

The judgment is reversed and the exceptions filed by the Department of Taxation are sustained.

Judgment reversed.

Carpenter and Conn, JJ., concur.


text:
    Fawick Airflex Co., Appellee, v. United Electrical, Radio & Machine Workers of America et al., Appellants. (Two cases.)

      (Nos. 21631 and 21684
    Decided April 2, 1951.)

      Messrs. Marshman, Hollington $ Steadman, for appellee.

      Messrs. Davis, Davis é Handelman, for appellants.
   Fess, J.

These are two separate but consolidated appeals from a judgment of the Common Pleas Court entered August 12, 1949. Appeal No. 21631 is on behalf of Calvin York, Marvin Bevans, and Emil Landi, who were adjudged in contempt for violating an injunctive order entered April 12, 1949. Appeal No. 21684 is on behalf of the United Electrical, Radio & Machine Workers of America, C. I. O., Local 735 from a judgment finding that the union breached the injunction of April 12,1949, and ordering it to furnish a bond in the amount of $10,000 to secure compliance with such injunction, the bond being on the condition that upon violation of the injunction the security would be forfeited, and being effective until such time as it shall appear to the court to be no longer necessary.

On March 8, 1949, plaintiff filed its petition for injunction against the union and certain of its officers and members praying for a ban upon all picketing of its plant incident to a strike and, in the alternative, for a limitation of the number of pickets. After due notice and hearing, a temporary injunction was entered March 12, 1949, providing, among other things, that the number of pickets at each entrance to the plant should be limited' to two. Upon application, leave was granted plaintiff to reopen the proceedings for the purpose of presenting evidence and argument on the issue of whether the defendant should be enjoined from all picketing. An injunction bond in the sum of $1,000 was filed March 21, 1949.

Violations of the injunction having occurred on March 23 and 24, a motion to show cause for contempt was filed against 18 persons. On March 28 and April 4, other violations occurred which were presented to the court in a second motion to show cause whereby the movant sought to have the individuals punished for contempt. Movant also asked for security and for such other punishment and security as the court might deem proper. The court heard testimony on the-first motion from March 25 to 28. The second motion was heard on April 7 and 8. On April 12, 1949, each of the respondents was found guilty of contempt. The court further found that by flagrant, wanton, and repeated violations of the order of March 12, 1949, respondents were imperiling the safety and security of the public and that they had forfeited any right which they might have had to picket plaintiff’s plant. Accordingly, the court by its order of April 12, 1949, banned all picketing and forbade the establishment of any union headquarters within 1,000 feet of the plant.

No additional or supplemental bond was fixed or filed incident to this order.

Thereafter the union maintained its strike headquarters within 600 feet of the plant. On July 18, July 20, and August 2, 1949, the individual appellants picketed the plant in violation of the order of April 12, 1949, but in accordance with the limited picketing provisions of the order of March 12.

The sole error assigned by the individual appellants is that the court erred in finding that the defendants had violated an order of the court which was null, void, and without effect, because (a) the court, having before it only the issue of contempt, was without jurisdiction to issue the injunctive order of April 12; (b) the order was coram non juclice; and (c) without a proper bond under Section 11882, General Code, the court had neither jurisdiction to issue the injunction nor to punish for contempt thereof.

The court had jurisdiction of the subject of the action as well as of the defendants, which jurisdiction continued until final disposition of the issues in the case. In their brief, appellants assert that the trial court lost jurisdiction by reason of the perfecting of an appeal on April 12, 1949. There is nothing in the record before us to support this contention except original journal entries in appeals Nos. 21463 and 21466, staying execution of sentence for contempt, “the respondents having given this court complete assurance in open court that during the pendency of this appeal there will be no violation of the injunction. ’ ’ Obviously, the appeals were upon questions of law and the cause was not thereby removed to the Court of Appeals.

The contention of coram non juclice may well be ignored. The power to hear and determine a cause is jurisdictional. The law conferred upon the Common Pleas Court capacity to entertain the complaint against the defendants and the defendants were properly brought before the court to answer the charges therein contained. Sheldon’s Lessee v. Newton (1843), 3 Ohio St., 494.

Could the appellants ignore with impunity the supplemental order of April 12,1949, because no additional bond was required or filed? No contention is here made that the appellants had no notice or knowledge of the modification of the injunction.

Under Section 11882, General Code, no injunction shall operate until the party obtaining it gives a bond to secure the party enjoined the damages he may sustain, if it finally be decided that the injunction ought not to have been granted. Where a proper bond has not been given, a court or judge thereof is without jurisdiction to punish for a breach of an injunction, and neither the statutory provisions for contempt nor the inherent power of the court to enforce its orders may be invoked. In re Cattell, 146 Ohio St., 112, 64 N. E. (2d), 416, 164 A. L. R., 312. The power of a court to punish for contempt is an inherent power and is not dependent upon legislative sanction, but, where the law has prescribed the procedure for the exercise of the power, it is the duty of the court to follow such procedure. In Matter of Lands, 146 Ohio St., 589, 595, 67 N. E. (2d), 433. The decision in the Gaitell case overlooks the principle that an order issued by a court with jurisdiction over the subject matter and person of the parties must be obeyed by the parties until it is reversed by orderly and proper proceedings. Worden v. Searls, 121 U. S., 14, 30 L. Ed., 853, 7 S. Ct., 814; United States v. Shipp, 203 U. S., 563, 51 L. Ed., 319, 27 S. Ct., 165; Gompers v. Bucks Stove S Range Co., 221 U. S., 418, 55 L. Ed., 797, 31 S. Ct., 492; Howat v. Kansas, 258 U. S., 181, 189, 66 L. Ed., 550, 42 S. Ct., 277; United States v. United Mine Workers of America, 330 U. S., 258, 91 L. Ed., 884, 67 S. Ct., 677.

In the absence of the limitation upon the effectiveness of an injunction without bond contained in Section 11882, General Code, the court would be free to exercise its inherent power to punish violations of its orders and decrees. In the instant case the bond was fixed and filed pursuant to the order of March 12,1949.

In an ancillary proceeding in the main case, after extended hearing disclosing the propriety as well as the necessity of prohibiting all picketing, an order was made and entered banning all picketing, pursuant to tbe prayer of the original petition. The statute requires a bond to make the injunction effective. This was given. No statute requires the giving of a new, additional, or supplemental bond upon modification of an injunction. Although entered upon a subsequent date after hearings upon motions for contempt, the April 12 order is essentially a modification of the original injunction which the court had jurisdiction to enter. The original injunction was not dissolved, but remained as modified by the supplemental order. It was and, so far as we are aware, still is within the control of the Common Pleas Court which may still further modify it or change its provisions. Cf. Forgy v. Cincinnati, Hamilton & Dayton Rd. Co., 1 C. C., 417, 1 C. D., 233. Under Section 11889, General Code, the defendants could move for additional security. The bond filed pursuant to the order of March’ 12 remained in full force and effect.

It has been said that it is within the province of a chancellor, in continuing an injunction, to require additional or new security or a bond with new and enlarged conditions, but the power of a court to substitute a new bond for the old one is questionable. Kent v. Bierce, 6 Ohio, 336. The statute refers to additional security.

At most, the failure of the entry to recite that the original bond should apply to the supplemental order was merely an irregularity which did not affect the jurisdiction of the court, and, before it can be made the predicate of error, it must have been called to the attention of the trial judge. Univis Lens Co. v. Kaplan, 89 N. E. (2d), 661.

We therefore conclude that the order made on April 12, 1949, was valid and became effective upon its entry and that the judgment as to the individual defendants should be affirmed.

The second assignment of error is that the order requiring the union to deposit the security bond in the sum of $10,000 was not sustained by sufficient evidence and is contrary to law. The evidence discloses that officers of the union were guilty of persistent disregard of the injunction against picketing and instigated the limited picketing in which the individual defendants participated. It is deplorable that one of counsel for the defendants suggested at a meeting that a test case be made in order to attack the validity of the court’s order. Full authority to require security is conferred upon the court by Section 11888, General Code. Satobrooh Steel Castings Co. v. United Steel Workers of America, 148 Ohio St., 73, 73 N E. (2d), 373. No question is apparently raised concerning the status of the union as a legal entity. Cf. State v. Fremont Lodge of Loyal Order of Moose, 151 Ohio St., 19, 84 N. E. (2d), 398.

It is suggested in the brief that in December 1949 the union adopted a resolution declaring the strike at an end and that the issue has, therefore, become moot. If this contention were correct, the appeals would have to be dismissed. Thus the inconsistency of appellants’ position is at once, revealed since it is apparent the issue is not moot so far as the union is concerned. Upon remand and upon application and appropriate showing of changed circumstances, the trial court is the forum to determine whether the bond is no longer required.

The judgment to which each of the appeals relate is affirmed and the cause is remanded to the Common Pleas Court for further proceedings.

Judgment affirmed.

Carpenter and Conn, JJ., concur.

Carpenter, P. J., Fess and Conn, JJ., of the Sixth Appellate District, sitting by designation in the Eighth Appellate District.

       On November 8, 1949, the surety on the bond wrote a letter to the clerk of courts advising that it was liable upon the bond for any obligation arising under the order of April 12 as well as under the order of March 12. This letter written after the appeals were perfected is given no consideration in determining the issues on these, appeals.


author: Wiseman, J.

text:
    Derby, Appellant, v. The Westminster Foundation of Ohio, Appellee.
    (No. 4404
    Decided February 19, 1951.)

      Mr. James M. Hengst, for appellant.

      Mr. Robert P. Duncan and Mr. Herbert G. Sherman, for appellee.
   Wiseman, J.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Franklin County dismissing plaintiff’s amended petition. The defendant’s demurrer to the amended petition was sustained, and, the plaintiff electing not to plead further, the cause was dismissed.

The plaintiff, in her amended petition, alleges that on August 26, 1946, defendant agreed to lease from the plaintiff and the plaintiff agreed to lease to the defendant under a 99-year lease certain premises located in Columbus, Ohio, the lessee to pay an annual rental of $1,500 and to expend $3,000 or more within six months in remodeling. It is alleged further that the lessee was given an option to purchase the premises for $30,000 upon the death of lessor. After describing the property, the plaintiff alleges further:

“On the third day of October, 1946, plaintiff was ready, willing and able to perform her part of said contract and tendered to defendant a ninety-nine-year lease executed by her and demanded that defendant execute said ninety-nine-year lease and to accept possession of said premises.
■ “After due and diligent effort, plaintiff leased said premises to another lessee upon the best terms obtainable, with the right on the part of said lessee to purchase said premises after the death of lessor for twenty-five thousand dollars ($25,000), whereby plaintiff was specially damaged in the sum of five thousand dollars ($5,000). Plaintiff was compelled to incur liability for and paid for legal services in the reasonable amount of five hundred dollars ($500), to her special damage in said amount. Plaintiff was otherwise generally damaged in the sum of five hundred dollars ($500), all to her total damage in the sum of six thousand dollars ($6,000).
“Wherefore, plaintiff prays judgment against defendant in the sum of six thousand dollars ($6,000) with interest from the third day of October, 1946, and for her costs herein.”

The defendant filed a general demurrer to the amended petition.

The lower court, in passing on the demurrer in a written opinion, stated:

“The contract which defendant refused to execute was a lease with an option to purchase and not a contract to purchase the premises. Neither defendant nor the present lessee is obligated to exercise the option. The election to exercise or refuse to exercise such an option lies with the lessee and not the lessor. Plaintiff would have no cause of action against lessee for refusal to exercise the option. Plaintiff’s measure of damages is based upon the theory that defendant would have exercised the option. Defendant was not required to elect until her death, and it cannot be assumed that defendant would have elected to purchase at that time.
“Under these circumstances plaintiff fails to state a cause of action for the reason that no present damage to plaintiff is alleged flowing from the breach of the contract set out in plaintiff’s petition. Attorney fees may not be recovered, since plaintiff does not state a cause of action and for the further reason that they are not an element of damages for breach of such a contract.”

It is conceded by the plaintiff that no recovery can be had for attorney’s fees unless recovery can first be had for substantial damages flowing from a breach of contract.

Counsel for both parties agree that there is no case law in Ohio on the legal proposition herein raised.

The plaintiff contends that the facts stated fall within the general rule found in 1 Restatement of the Law of Contracts, 521, Section 332, which, in part, is as follows:

“Where a right to a promised performance is conditional upon the happening of some fortuitous event, the promisee can recover damages measured by the value of the conditional right at the time of breach, (a) if it is impossible to determine with reasonable certainly [certainty] whether or not the event would have occurred if there had been no breach * *

The comment under this section is as follows:

“a. In cases within the Section it is not merely profits that are uncertain. It is the existence of any duty of immediate performance by the defendant that is uncertain; the defendant’s promise is aleatory (see Section 291), and actual failure to render the promised performance might not be a breach of duty. The breach by the defendant is either a repudiation or the prevention of the performance of a condition (see Section 315); and it takes place before the expiration of the time allowed for the occurrence of the condition precedent. It may make it impossible to determine at the trial whether or not the condition would have occurred or will yet occur; or it may cause the injured party to make a new contract for the carrying of the risk. The plaintiff should not be given damages measured by a promised performance that it might never have been the defendant’s duty to render; and yet he should not be deprived of a remedy in damages. He can maintain an action for restitution; but he also has the alternative remedy of a judgment for the value of his conditional contract right at the time of the breach. It may also be described as the value of his ‘ chance of winning. ’ The rule here stated may be regarded as permitting the recovery of a part of the value of the promised performance, when the rule in Section 331 forbids the recovery of the whole, that part being proportioned to the chance that the performance would have become due under the contract, as the chance is indicated by the market for the plaintiff’s conditional right.”
“Illustrations of Clause (a):
“1. The A Journal Company offers prizes in a subscription contest. B enters the contest and has a good lead for the first prize when A discontinues the contest. It is not possible to show which prize B would have won; but his chance of winning some one of the prizes was so good as to have a sale value. B has a right to damages measured not by the value of any particular prize, but by the value of his contract right, at the time of breach, that his opportunity to win a prize should not be destroyed.
“2. In a state where lotteries are lawful, A contracts to pay $10,000 to the person holding the duplicate of the ticket that may be drawn first from a bos containing the whole number of tickets. B holds duplicate ticket number 263. In breach of his contract, A fails to put number 263 in the bos; and another ticket holder receives the prize. Before the drawing, the value of tickets like 263 is $10 each. A can get judgment for $10 as damages.
“3. A offers a prize for the winning of a race and accepts from B the required fee for the entry of B’s horse. When the race is run A wrongfully prevents B’s horse from taking part. It cannot be proved with certainty whether or not B’s horse would have won the race; but B can prove that many speculators would have paid one-fourth of the amount of the prize for B’s chance of winning it, the odds against B’s horse being 4 to 1. A verdict in B’s favor for one-fourth of the amount of the prize will be sustained.”

The defendant contends that the facts stated by the plaintiff in her amended petition do not fall in that class of cases referred to in the above section. In the comment it is stated that the promise on the part of the defendant which is sought to be enforced is “aleatory.” In the same work, on page 430, Section 291, there is given a definition of an “ aleatory promise” as follows:

“An Aleatory promise’ in the Restatement means a promise conditional on the happening of a fortnitons event, or an event supposed by the parties to be fortuitous. ’ ’

In Comment a under Section 291, ibid., a fortuitous event is defined as follows:

“A fortuitous event within the meaning of the'present and subsequent Sections is an event which so far as the parties to the contract are aware, is dependent on chance. It may be beyond the power of any human being to bring the event to pass; it may be within the control of third persons; it may even be a past event, as the loss of a vessel, provided that the fact is unknown to the parties. The event may be positive or negative — an occurrence or a failure to occur. But the fact that the time or amount of performance is dependent on a fortuitous event does not make a promise aleatory. ’ ’

Thus it appears that Section 332, ibid., refers to the happening of an event which may or may not occur; a happening which depends upon chance.

The pocket supplement to Bestatement of the Law of Contracts, Ohio Annotations, under Section 332, states that no cases in Ohio have been “found involving the problems discussed in this Section.” Under Section 291, it is stated that the term, “aleatory,” does not seem to be used by the Ohio courts and is found in the civil law.

The trial court, in passing on the demurrer to the amended petition, found that the plaintiff had not stated a cause of action, solely on the basis that a portion of the damages claimed was not recoverable. We are not required to pass on the narrow question of the right of the plaintiff to recover damages because of the difference in the options to purchase. In testing the amended petition against demurrer, the court is not so limited. The plaintiff in her amended petition claimed $5,000 damages, being the difference between the option under the lease, which the defendant was required to execute, and the option which was executed by the lessee under the second lease, and claimed $500 attorney’s fees growing out of the breach and $500 as general damages by reason of the breach. If the court were to exclude from the amended petition all damages relative to the option and attorney’s fees, there still would be alleged a breach on the part of the defendant and general damages in the amount of $500. A breach of contract always creates a right of action; but a breach sometimes occurs without causing substantial damages. In such case the plaintiff can recover nominal damages. 1 Restatement of the Law of Contracts, 502, 503, Section 328. Whether the plaintiff, under the law, may recover as substantial damages, such as are alleged in her amended petition, the difference between the two options is not a matter for the court to consider in testing the plaintiff’s cause of action on a general demurrer.

This court, in determining whether the trial court properly sustained the demurrer to the amended petition, must be controlled solely by the allegations stated in the amended petition in determining whether a good cause of action has been stated; facts stated in the brief of counsel for the plaintiff cannot be considered. If the facts stated in plaintiff’s brief had been pleaded we would still have the question whether the amended petition was good against demurrer.

The plaintiff’s amended petition states a good cause of action for breach of contract, although open to a motion to make definite and certain. The demurrer should have been overruled.

The judgment is reversed and the cause remanded for further proceedings according to law.

Judgment reversed.

Hornbeck, P. J., and Miller, J., concur.