text:
    BRIDGES — COUNTIES—MUNICIPALITIES.
    [Cuyahoga (8th) Circuit Court,
    February 27, 1911.]
    Marvin, Winch and Henry, JJ.

      State, ex rel. William Howell v. W. F. Eirick et al.
    1. Power of County Commissioners to Build High Level Viaduct in . City.
    The authority vested in county commissioners by Sec. 7557, Gen. Code, to build bridges in certain cases, includes authority to construct a viaduct or high level bridge in a proper case.
    2. Character of County Road Persists Notwithstanding Occupied as Plank Road and City Street.
    The fact that a part of a county road was for a time under the exclusive jurisdiction of a plank road company, and has since been de facto under the exclusive jurisdiction of the municipality within which it is now embraced, does not in law amount to an abandonment of the road, but its existence persists and the county commissioners have authority to construct and maintain bridges thereon.
    3. Power of Commissioners to Appropriate Site for Bridge.
    The question of a site for a bridge is made by the statutes incidental to the main question of authority to erect the bridge, and where its erection has been authorized the county commissioners have the authority to appropriate whatever property may be necessary for the site.
    4. High Level Bridge Extending in Straight Line within Points of County Road Instead of Circuitous Route of Valley within Authority to Construct.
    Where the termini of a proposed high level bridge or viaduct are located substantially within the limits of a county road, the fact that it follows a straight line, instead of the circuitous route made necessary by the descent to the bottom of the valley as the road was originally surveyed, is a matter o no importance so far as authority to construct the bridge is concerned.
    Appeal from common pleas court;

      William, Howell and Burton Hahe, for plaintiff.
    . Walter D. Meals and JoJín A. Cline, for defendants.

      Affirmed, no op., State v. Eirick, 84 O. S. 503.

   HENRY, J.

This action, commenced in the; common pleas and appealed to this court, is a tax-payers’ action to enjoin the building by tbe county commissioners of Cuyahoga county of “a county high level bridge over the Cuyahoga river upon the Cleveland-Milan road between Detroit and Superior avenues in the city of Cleveland; said Cleveland-Milan road being a state road,” according to the language of the preliminary resolution adopted by the county commissioners July 13, 1910.

Pending the action the question of building such a bridge has been submitted to and approved by the electors of said county, as involving an expense far in excess of the statutory limitation of $18,000, and hence requiring such approval by the electors.

The amended and supplemental petition alleges “that the Cuyahoga river valley at the point referred to in said resolution is about one-half mile in width, occupied by numerous streets of the city of Cleveland, railroad tracks, and buildings, and that on either side of said valley the banks rise to a height of from 75 to 100 feet to the general level of the land on either side of said valley; that the Cuyahoga river occupies a channel in said valley about 200 feet in width,” and that said high level bridge is “to extend the entire distance across said river valley, and to be carried on arches or trestle work, so as to connect the level land at the top of the banks on either side of said valley, and to span the railroad tracks, public streets of the city of Cleveland, buildings, said river channel, and all intervening space between the banks of said valley, so as to connect Detroit avenue on the westerly bank of said valley, with Superior avenue on the easterly bank, and form a practically level elevated roadway across said entire valley.”

The petition further alleges “that there is not at the place of said proposed structure any state or county road, free turnpike, improved road, abandoned turnpike, or plank road, and no such road in common use at or near the place of said proposed structure.” The petition also alleges,.“That there is at the place aforesaid a viaduct spanning said river valley connecting Detroit and Superior avenues in the city of Cleveland and forming an elevated and level roadway about 50 or 60 feet in width and about one-lialf mile in length, which viaduct was built and erected by tbe city of Cleveland about the year 1874, at great expense,” etc.

The petition contains other allegations tending to show that the proposed high level bridge will so interfere with said existihg viaduct as to constitute an unlawful invasion by the county commissioners of the exclusive jurisdiction of the city over the present route of travel; that the original county road in and as a part of which said high level bridge is proposed to be erected, has long since ceased to extend, if indeed it ever did extend, across the Cuyahoga river; that the existing viaduct affords a convenient route of travel, which has long been the exclusive route across said Cuyahoga river valley and that the high level bridge proposed to be erected departs not only from the existing, but also and more widely from the ancient route of travel, in such wise as to touch said route or routes only at the termini of the proposed improvement, and there only approximately. Relator denies that the improvement is a bridge, properly so called; denies that it is necessary, and denies that its location is on any county road of which the county commissioners have jurisdiction, or which is in common public use; all of which the answer puts in issue.

The county commissioners derive their authority, if any, in the premises, from Secs. 2421 and 7557 Gen. Code, as follows:

“Section 2421. The commissioners shall construct and keep in repair necessary bridges over streams and public canals on state and county roads, free turnpikes, improved roads, abandoned turnpikes and plank roads in common public use, except only such bridges as are wholly in cities and villages having by law the right to demand, and do demand and receive part of the bridge fund levied upon property therein. If they do not demand and receive a portion of the bridge tax, the commissioners shall construct and keep in repair all bridges in such cities and villages. The granting of the demand, made by any city or village for its portion of the bridge tax, shall be optional with the board of commissioners.”
‘ ‘ Section 7557. The county commissioners shall cause to be constructed and kept in repair, as provided by law, all necessary bridges in villages and cities not having the right to demand and receive a portion of the bridge fund levied upon property within such corporations, on all state and county roads, free turnpikes, improved roads, transferred and abandoned _ turnpikes and plank roads, which are of general and public utility, running into or through such village or city.”

The evidence, including the agreed statement of facts, shows that the Cleveland and Milan road was laid out in 1827, “beginning at the east end of Superior lane at the center thereof, in Cleveland, and running — south 72 degrees west 14 chains 65 links to a post on the west bank of Cuyahoga river, bearing south 41 degrees east of the south corner of Alonzo Carter’s, red house, and occupied by Joseph Mason, distant 90 links;: thence south 57 degrees, west 1 chain 16 links; south 20 degrees west 13 chains 00 links; south 33 degrees 15 minutes W. 15 chains 50 links to the top of Cuyahoga Hill,” and so on to Milan in Huron county. The map which is put in evidence to show the locations of the road thus laid out, of the existing viaduct, and of the proposed high level bridge, discloses that the termini of the proposed improvement are substantially within the limits of the original highway, but that the new structure, as a whole, will span the valley in an air line, and stand to the route of the ancient highway in the relation, roughly speaking, of the cord to the curve of an arc. The existing viaduct runs at a somewhat lower level between the two.

Paragraph 3 and 4 of the agreed statements of facts are as follows:

(3) “That Superior avenue is a public street of the city of Cleveland, with the westerly terminus át the east line of Water street in said city, and connects at said • point with Superior lane, being the'point of beginning of the Cleveland and Milan road, as set forth in the report above referred to.”
(4) “That the Cleveland and Milan road above referred to, from Pearl street westerly to Rocky river, followed the line of what is now called Detroit avenue. That about 1848, the Rockport Plank Road Company was chartered under Ohio Laws (46 O. L. 152). Said corporation duly organized and took possession of and constructed a plank road over said Detroit street from Pearl street as far west as Rocky river, a distance of 5 or 6 miles; and said Plank Road Company erected and maintained toll gates thereon, and in 1869, the said limits of the city of Cleveland having been extended so as to embrace so much of said road as lies between Pearl street and Gordon avenue, the said Plank Road Company, by agreement with the city of Cleveland, and in consideration of $900 paid by said city of Cleveland, executed and delivered to said city of Cleveland a conveyance of that portion of its road between Gordon avenue and Pearl street; a copy of said deed is hereto attached as Exhibit A.” ' •

The first contention of the relator is that the proposed structure is not a bridge within the meaning of the sections above quoted, but is, in contradistinction thereto, a viaduct. It is pointed out that the legislature has itself recognized this distinction in Sec. 10 of the municipal code, where the language “construct or repair viaducts, bridges and culverts” is used. To the same point the case of Carroll Co. (Comrs.) v. Bailey, 122 Ind. 46 [23 N. E. Rep. 672], is cited, the syllabus of which is as follows:

“A structure, or culvert, over a ravine, made by filling in the depression with earth and gravel, there being in the center under the highway an archway of stone masonry covered by a parapet, which was erected for the purpose merely of draining surface water off the public highway, is not a bridge within the meaning of the statute, which requires the board of commissioners of each county to cause all the bridges therein to be kept in repair.
“The term ‘bridge,’ in its common-law meaning, the sense employed by the statute, denotes a structure erected over a river, creek, pond, lake, or stream of water flowing in a channel, between banks more or less defined, although such channel may be occasionally dry, in order to facilitate public passage over the same.”

In the opinion of the court, at page 49, it is pointed out, however, that the legislature of Indiana had in terms “restricted the authority of the county commissione.rs to the erection and'repair of bridges over streams or water courses, ’ ’ and that no such stream or water course existed in that case.

In Matter of Freeholders of Irondequoit, 68 N. Y. 376, which is also cited, the first paragraph of the syllabus discloses a similar basis of distinction, as follows:

“The act of 1857 (Chap. 639, Laws of 1857) providing for the building and repairing of bridges over streams dividing adjoining towns, confers no authority as to bridges over bays, lakes or other bodies of water not ‘streams,’ or as to causeways or bridges over marshes between two towns.”

There are, indeed, some authorities which seem somewhat to limit the broad meaning of the term bridge, but our own legislature has often used the word in the widest sense, notably in acts providing for overhead bridges across the Mahoning river, considered in State v. Davis, 55 Ohio St. 15 [44 N. E. Rep. 511], though these acts were there held to be unconstitutional because they were special legislation. So, also, our Supreme Court has expressly declined to narrow the significance of the term, in Smith Bridge Co. v. Bowman, 41 Ohio St. 37 [52 Am. Rep. 67], holding that a railroad bridge is within the meaning of the word as used in the mechanic’s lien statute. The dissenting opinion in that case is based upon an attempt to narrow the construction of the term. The word, as defined in 1 Bouvier’s Law Dictionary 265, is as follows:

“A bridge is a structure erected over a river, creek, stream, ditch, ravine or other place to facilitate the passage thereof, including by the term both arches and abutments.”

That the term “bridge” includes viaduct is expressly held in Argentine v. Railway, 55 Kan. 730 [41 Pac. Rep. 946; 30 L. R. A. 255] ; State v. Gorham, 37 Me. 461; Whitall v. Gloucester Co. 40 N. J. Law 302; Funk v. Railway, 61 Minn. 435 [63 N. W. Rep. 1099; 29 L. R. A. 208; 52 Am. St. Rep. 608].

In State v. Hamilton Co. (Comrs.) 49 Ohio St. 301 [30 N. E. Rep. 785], it was sought to mandamus the county commissioners of Hamilton county to erect a structure similar to the one proposed in the case at bar,- under the- authority of See. 4938, R. S., now Sec. 7557 Gen. Code, above quoted, and though the court declined to interfere with the administrative discretion of the county commissioners, it is nowhere suggested in the opinion that the commissioners were without authority, under this section, should they choose to avail themselves of it, to build the structure in question. We have, therefore, no doubt that the sections of the General Code above cited authorize the construction of a high level bridge or viaduct in proper cases.

The relator contends secondly, that the power of the commissioners does not extend to building bridges within the limits of a city upon which general power has been conferred for that purpose. But it is expressly held in Lewis v. Laylin, 46 Ohio St. 663 [23 N. E. Rep. 288], that county commissioners have authority to improve a state, county or township road, although the improvement embraces that part of the highway which lies within the limits of a municipal corporation. It is moreover distinctly intimated in Piqua v. Geist, 59 Ohio St. 163 [52 N. E. Rep. 124], that the same rule applies to the erection of county bridges within the limits of municipalities.

Whatever ambiguity may have existed in the sections of the Revised Statutes, corresponding to the sections of the General Code, above quoted, is here immaterial, because the proceedings looking to the improvement- now proposed have been taken since the present codification of the statutes came into force. It may be true that the exception embraced in Sec. 2421 Gen. Code, namely “except only such bridges as are wholly in cities and villages having by law the right to demand and do demand and receive part of the bridge fund levied upon property therein,” is deprived of its force because of the circumstance that the only laws providing for such division of funds are apparently special laws and therefore unconstitutional; yet the fact remains that the same section now expressly provides that, “if they do not demand and receive a portion of the bridge tax, the commissioners shall construct and keep in repair all bridges in such cities and villages,” which are otherwise within their jurisdiction.

The relator further contends, that, if the proposed strueture is properly a bridge and the commissioners have authority to build in cities, “they can not build in the location decided upon, because there is no state road or other road in common public use on which to build it, and it is not necessary. ’ ’

The diversion of the route of travel over the lines of the original highway to the present viaduct has not operated a discontinuance of the county road as such. Any disused portion of the highway, if utterly abandoned, is no doubt vacated by operation of law; but the county road, as such, persists, despite the new route of travel. Steubenville v. King, 23 Ohio St. 610; Silverthorne v. Parsons, 60 Ohio St. 331 [54 N. E. Rep. 259]. It continues, in the language of the statutes, to be a road “in common public use,” or “of general public utility.” Nor do we think the extinguishment of the county road is implied by the interest or action of the Rockport Plank Road Company either before or when it gave its deed to the city of Cleveland September 4, 1869, and did thereby “absolutely dispose of, release and abandon to the said city for the purpose of a public street all of that part of the plank road of said company which lies within the limits of said city and all the right and title of the said company therein and thereunto.”

In Chagrin Falls & Plank Rd. Co. v. Cane, 2 Ohio St. 419, it was held that:

“The interest of the public in such roads consisting of a perpetual easement in the land covered by them, for all actual uses and purposes of public travel, may, at the discretion of the general assembly, be transferred without any pecuniary equivalent, to a plank road company; such plank road still remaining a public highway, and subject to the same uses and purposes as before. ’ ’

Although this part of the Cleveland and Milan road was for a time under the exclusive jurisdiction of a plank road company, and although it has since been de facto under the exclusive jurisdiction of the city of Cleveland, the county road, within the meaning of the statutes here relied upon, continues to exist.

As to the necessity of the new bridge, we cannot, as a matter of law say that the existing viaduct, which was deemed adequate at the time of its construction in 1874, and which still continues to be the main route of public travel upon this road, is now, after the lapse of more than a third of a century, adequate and convenient to the use of the vastly increased population in the midst of which it is located. That question lies wholly within the discretion of the county commissioners, so long as that discretion is not abused. State v. Hamilton Co. (Comrs.), supra.

It is further contended that “The proposed structure, as located by the commissioners, is not on the Cleveland and Milan road, and no authority has been voted to expend the public funds for a site for a bridge there. ’ ’ Whatever may have been the meaning of Sec. 2825 R. S. (G. C. 5638), that section was superseded, prior to the. commencement of the proceedings of the commissioners for the proposed improvement, by Sec. 5628 Gen. Code, which imposes no limitation upon the county commissioners in respect to levying a tax for a bridge site. The section does make specific mention of sites for county buildings, but in connection with the building of county bridges, the subject of sites is ignored. The county commissioners- have ample power, under the statutes, to appropriate whatever property may be necessary for the purpose in question, and to expend money in that behalf, without a vote of the electors, except as such authority may be required and given by the vote upon the question of erecting a bridge itself, and the question of site is left by the legislature incident to the main question of erecting the bridge.

As already indicated, the agreed facts in this case show that the termini of the proposed improvement are located substantially within the limits of the Cleveland and Milan road. That the roadway, as elevated above the valley by the proposed improvement, is not in a vertical line above the old roadway, is of no importance. The obvious and proper way to erect a high level bridge across a valley' is to erect it in a straight line. This necessarily involves a departure from the circuitous roadway required for the descent to the bottom of the valley as the highway was originally surveyed. The same condition obtained with regard, to the Rocky River bridge. Silverthorne v. Parsons, supra.

We have examined all the points made by the plaintiff in .argument and in his brief without finding any sufficient reason to enjoin the proposed improvement as being beyond the authority of the county commissioners to make, or as involving .any such irregularity of procedure as to render the expenditure of money therefor illegal.

Our brother'Winch has refrained from participating in our deliberations, and the other members of the court have independently reached the conclusions thus indicated. He is a resident and property owner in a part of the city which will receive a material advantage from the proposed improvement, and he wishes it to be understood that his personal opinion has in no wise contributed to the conclusions reached.

The petition will be dismissed.

Marvin and Winch, JJ., concur.


source: Caselaw Access Project

author: MARVIN, J.

license: Public Domain

text:
    ACCOUNTS — PLEADING.
    [Cuyahoga (8th) Circuit Court,
    March 28, 1908.]
    Henry, Marvin and Winch, JJ.
    Frederick F. Hodges v. C. E. Taft.
    1. Burden of Proof in Action on Account in The Short Form.
    In an action on an account set up in the short form- in th.e petition, one of the items of the account being for commissions, etc., “as per verbal agreement,” the burden is on the plaintiff to prove the terms of the agreement and performance thereof by him the same as if he had sued on the contract.
    2. Amendment of Answer to Include General Denial.
    At. the close of all the evidence, under Sec. 5114, R. S., (Sec. 11363 G. C.) the court may permit the defendant, when justice requires it, to amend his answer so as to include in it a general denial.
    [Syllabus by the court.]
    Error to common pleas court.

      McGrath & Stern, for plaintiff in error.

      Smith, Taft & Arter, for defendant in error.
   MARVIN, J.

Hodges sued Taft, his petition being in the short form authorized for suit upon an account. Am averment in the petition is that the account is “for commissions at the rate of one-half of 3 per cent on the figured cost of a four-story brick and stone apartment house, which figured cost was $33,000, and for architectural services, specifications, plans, bids, etc., thereon, which services were rendered by the firm of Hodges & Hodges, formerly a partnership, and which account has been sold, assigned and transferred to this plaintiff for a valuable consideration.”

The account annexed to and made a part of the petition is in these words:

“October 15, 1901.
“C. E. Taft.
“To Hodges & Hodges, Dr.
“To commissions at the rate of 1-2 of 3 per'cent on figured cost of building to wit: $33,000.00 for architectural services, preparing plans, specifications, receiving bids, etc., on four-story brick and stone apartment house on Detroit Street, as per verbal agreement.............................. $195.00
‘ ‘ October 15, 1901, by credit of amount paid on former contract as per agreement December 21, 1901 .................................: $95.00
“Received by cash on account...... 5.00
“Total Credits . $100.00
‘Balance due...................... $395.00”

To this petition the defendant answered, setting out that he entered into a verbal contract with Hodges & Hodges, by the terms of which they were to prepare plans and specifications and obtain estimates for a sixteen suite apartment house, etc., the building to cost not to exceed $28,000. That he was to pay for such plans, specifications, etc., the sum of $100, and that in the event he should thereafter determine to put up said building, he was to pay 5 per cent on said cost of $28,000 for their services as architects and superintendents.

The answer then avers thát the estimates secured on the plans prepared by Hodges & Hodges were between $33,000 and $34,000 and that thereupon he determined not to go forward with the work. That he paid to said Hodges & Hodges the sum of $100 and that was all that was agreed to be paid.

To this the plaintiff replied, denying each and every allegation, statement and averment contained in the answer, and then averring that the $100 alleged in the answer to have been paid to said Hodges & Hodges was applied upon the account referred to in plaintiff’s petition, and it was distinctly understood and agreed that the said $100 should be applied upon account thereof only.

It will be noticed that there is no direct denial in the answer of the averments of the petition, though a liberal construction of the answer would probably result in finding that the •contract spoken of in the answer is the same. one which the plaintiff in his account speaks of in the words, “as per verbal agreement. ’ ’

At the trial it developed that there was an agreement between the parties that Hodges & Hodges should perform certain duties for the defendant, as architects. There was a disagreement as to the terms of that agreement, but there was no claim on either side that there was not some kind of an agreement or verbal contract between the parties, and that whatever claim the plaintiff had against the defendant was for services performed under such verbal contract. The denial contained in the reply to the defendant’s answer, was much broader than he probably intended to make it, for there was no dispute between them that $100 had been paid by the defendant to the plaintiff or paid to Hodges & Hodges for some work done under an agreement between them. The court charged the jury, that-to entitle the plaintiff to recover he must show an agreement or contract made between his firm and the defendant for these services. This is complained of. It is said that because the form of the petition is the short form, provided for suit upon an account, there was no necessity of proving the contract, but the copy of the 'account itself says that the work was done under a verbal agreement. The fact that the short, form of pleading was used in nowise relieves the plaintiff from the burden of showing that there was an agreement under-which, as he says in his account, the services sued for were rendered. The evidence would have to be the same as though he-bad set out the fact that he had made an agreement to perform certain duties and that he had performed those duties.

As to the burden of proving, the court charged the jury that the burden was upon the plaintiff to establish his case. It. is urged that this was error, because it is said, having denied,, in the reply, the allegations of the answer, there was a denial of the payment of the $100, and therefore the burden was upon the defendant so to show such payment. Since the petition itself showed that the defendant had paid $100 and it was only that $100 which the defendant claimed to have paid, there was. no burden upon him to prove such payment.

As said earlier in this opinion; there was no direct denial, in the answer of the allegations of the petition, but the allegations are such that it was clearly understood that the defendant and the plaintiff were both relying upon the same contract,, whatever it was. The court, however permitted the defendant,, at the close of the evidence, to amend his anwer by inserting a general denial. This worked no injury to the plaintiff. The-case was tried as though such denial was in the answer, and under Sec. 5114, R. S. (G. C. 11363), it was entirely proper-for the court to permit this amendment to be made.

We conclude, therefore, that there was no error in the-charge of the court, nor do we find any error in the record w'hieh would justify a reversal. The judgment is affirmed.

Henry and Winch, JJ., concur.


text:
    CHATTEL MORTGAGES.
    [Cuyahoga (8th) Circuit Court,
    March 7, 1911.]
    Marvin, Winch and Henry, JJ.

       Samuel C. Green v. William M. Bass et al.
    Priority of Chattel Mortgage not Lost by Action on Note and Levy on Mortgaged Goods.
    The priority of lien of a chattel mortgage is not lost by taking judgment upon the mortgage note and levying upon the mortgaged goods.
    [Syllabus by the court.]
    Error to common pleas court.

      A. H. Martin, for plaintiff in error.

      Green, Green & Green, Higley & Maurer and Gage & Wilber, for defendants in error.

      Affirmed, Green v. Bass, 83 O. S. 378.

   MARVIN, J.

Bass gave a chattel mortgage to the Cleveland & Sandusky Brewing Company on certain chattels, to secure the payment of a cognovit note given by him to the brewing company. This mortgage was in all respects in conformity with law and was duly filed.

Later Bass gave a mortgage on th'e same chattels to Green, to secure payment of a debt to him. This mortgage was likewise in all respects in conformity with law and was duly filed.

Later, and while each mortgage was in full force, the Cleveland & Sandusky Brewing Co. brought suit upon the cognovit note and obtained a judgment thereon against Bass, and caused an execution to be levied upon the chattels covered by the two mortgages. Before sale was made under the levy, the Cleveland & Sandusky Brewing Co. recalled the execution, and sold and assigned both its judgment and its mortgage to the Standard Brewing Co.; at the same time it advanced money to Bass and took a new mortgage from him to secure the original debt and also secure the repayment of the money then advanced to Bass.

The present suit is brought to foreclose the mortgage given to Green.

The Standard Brewing Co. claims that by virtue of the mortgage assigned to it by the Cleveland & Sandusky Brewing Co. it has a lien upon the goods superior to the lien of the plaintiff. This the plaintiff denies. This presents the only question for our solution.

The plaintiff bases his contention upon the proposition that, though the brewing company’s mortgage was originally prior and superior to his, such priority was lost when judgment was taken on the note- and the goods levied upon by execution, and that the subsequent release of the execution did not have the effect' to restore the original mortgage lien. If then it be found that the judgment and levy was not a waiver of the mortgage lien, the plaintiff must fail.

The argument'is made that the brewing company had two remedies, to wit, to sue and recover upon its note and levy on the goods of Bass, or to proceed on its rights under the mortgage, at its election; that it elected to take the former course, and is bound by such election and may not thereafter alter its election and proceed upon its mortgage.

The plaintiff makes no claim that the bringing of the suit and obtaining judgment constitutes a waiver of the brewing company’s rights under its mortgage, but that such waiver results from the levy of the execution upon the property.

It is not claimed, and can not successfully be claimed, that the act of the brewing company in causing levy to be made and then releasing the goods from such levy could work a hardship to the plaintiff, even if it should be held that the mortgage lien was not thereby waived, because he was not induced to do, or to refrain from doing anything because of the levy.

In support of plaintiff’s contention many cases are cited, some of which seem to give much weight to the contention. So far as the authorities in Ohio are concerned, we find them to be with the brewing company.

In Allbright v. Meredith, 58 Ohio St. 194 [50 N. E. Rep. 719], it is held that where a vendor of chattels, under the condi- • tional sales act, Sec. 7913, R. S., recovers judgment at law for the unpaid portion of the purchase money, and causes execution to be levied upon the property sold, he thereby waives his right. to his lien under the contract, and shall be held to his election of remedies. The court, in the opinion, calls attention to the fact that the vendor failed to comply with the provisions of the statute, requiring repayment to be made by the vendor before he can retake the property. The controversy was between a party to ■whom the vendee had mortgaged the property and the constable who had seized the property on execution on the judgment of the vendor. The reason why the constable, or the vendor who had obtained the judgment, could not hold the property, is obvious. The vendor had chosen a remedy wholly inconsistent with his claim under the contract of sale, as evidenced by his failure to repay any part of the purchase money, as he was required by statute to do, before he could claim the property. The reason for the decision in that case does not apply to the case now being considered.

The case of State v. Lacy, 10 Circ. Dec. 111 (18 R. 379), does not pass upon the question raised in the present case, ill that is said about it is that mortgaged chattels which had been levied upon by execution at the suit of the mortgagee, and were in the hands of the constable, under such levy, were subject to selection as exempt, in lieu of a homestead, these words being used, speaking of the effect of the levy: “this, we think, was a waiver of any claim by said Conroy & Co. (the mortgages) to the ownership of said property by virtue of a chattel mortgage from Mrs. Armstrong, the relator, even if such claim were asserted in this action, as we understand it is not.”

It will.be seen by this language that though the judge delivering the opinion expressed his views on the point, the question was not raised. True, the proposition is stated in the syllabus, as claimed by the plaintiff here, but the syllabus was probably prepared by the publisher and not by the court or any judge of the court.

The case of Frost v. Shaw, 3 Ohio St. 270, seems exactly in point and to sustain the claim of the brewing company, the second clause of the syllabus reading as follows:

“Where, by the terms of a chattel mortgage, the mortgagee, at the maturity of his debt, has the right to the possession of the property, and he sees proper to reduce his debt to judgment, and then through his agent, to. turn out the mortgaged property, and have it sold under the authority of an execution for the payment of his debt, the debtor sustains no injury in the right of possession in the property, which would support an action of trespass, even although the chattels thus mortgaged and sold belonged to the enumerated articles exempted by law from execution.”

And the court says, at page 273:

“By virtue of the chattel mortgage, 'both the right of possession and the right of property in all the chattels excepting one, had passed to the mortgagees; and if they deemed it proper, through their agent, to take possession of the property, and have it sold under the authority of an execution, no wrong was done, the plaintiff in his right of possession, for which he could sustain an action of trespass.”

To the same effect is the case of Colwell v. Carper, 15 Ohio St. 280. In the opinion on page 286, the court says:

“The husband mortgaged the property without his wife’s consent or knowledge. The condition was broken; and thereupon the right of possession, as against the husband, accrued to the mortgagees, which they could assert with or without process; and when asserted by process of execution, the husband was precluded, by the operation of his mortgage, from claiming the property as exempt from execution. Frost v. Shaw, 3 Ohio St. 270. The fact that the mortgagees chose to resort to process to effectuate a change of possession, can make no difference: and the disposing of, and parting with, both the title and possession, was as effectual as it was in the husband’s power to malic it.”

The editor of Swan’s Treatise, (21 ed.) published in 1905, states the law at pages 287, 288, as laid down in Frost v. Shaw, supra.

Finding, as we think we do, from these authorities, that the law is settled in Ohio by the decisions of our Supreme Court, we think it unprofitable to consider how that question, has been decided in other jurisdictions.

We hold that the ■ Standard Brewing Company has the^ prior and superior lien on the mortgaged property.

Winch and Henry, JJ., concur.


author: WINCH, J.

text:
    HIGHWAYS — RAILROADS.
    [Medina (8th) Circuit Court,
    May, 1907.]
    Henry, Marvin and Winch, JJ.

      L. O. Brown et al. v. Akron & Chicago Junction Ry.
    1. Diversion of Highway to Adapt Course to Diagonal Crossing by Railway.
    When in the construction of a railroad it becomes necessary tar cross a highway in the country at such an angle as to render the building of a necessary bridge impracticable, the grade of the railway being twenty-seven feet above the grade of the highway, the railroad company is granted, by Sec. 3284 R. S. (Sec. 8773 G. C.), the right to divert the course of the highway, that a crossing may be made at right angles, provided, it does not impair the usefulness of said highway.
    2. Necessity of Diversion of Highway, Question .for Court and Elements for Determination.
    The question of the necessity of the diversion of a highway for railroad purposes is for the court to decide, and in determining such question the convenience and necessity of the whole public, including travelers on the railroad as well as the highway • should be considered.
    3. Diversion of Country Highway for Railway Purposes Permanent.
    The diversion of a country highway which is authorized by See-3284 R. S., may be permanent, provided said diversion is reasonably necessary, and does not unreasonably interfere' with, the use of said highway by the public.

      I. T. Siddall, N. H. McClure and F. W. Wood, for plaintiffs.

      J. M. Lessick, Lee Elliott and Frank Heath, for defendants.

      Affirmed, no op., except as to compensation for maintenance, Brown v. Railway, 79 O. S. 440.

   WINCH, J.

This ease involves, the right of a railroad company to divert a public highway, and the manner in which the diversion should be made, if permitted.

The contention between the parties, together with a map of the proposed changes, will be found fully set forth in the opinion of Judge Washburn, Brown v. Railway, 17 Dec. 418 (7 N. S. 529), and for that reason we shall confine this opinion, to a brief statement of the conclusions we have reached.

We have no doubt that under Sec. 3284; R. S., a railroad company has the right to permanently divert a highway or country road, when it becomes necessary to do so in the construction of its road; such diversion, however, must be reasonable and the highway must be restored to such condition as will not impair its permanent usefulness.

The necessity for the grant of power to a railroad company is manifest, when we consider the great number of township and other officials with whom a new road must deal in crossing the state, and the diverse views apt to be held by them, but it is to be regretted that the legislature has not limited and defined this right by requiring notice and application to some tribunal for approval of plans of the railroad company, before they are executed.

An arrogant exercise- of this right by a railroad company naturally stirs the local officials and people, whose pride and independence sometimes will not bend to a reasonable settlement of the controversy.’ The courts, however, must see that the right is so exercised as to produce the greatest good to the greatest number.

... The best engineering skill of the country has been produced and given in opinions as to the proper method of crossing a diagonal road with a railroad on an embankment or fill of from twenty-six to forty-two feet, intended to take care of fast trains on' a through line. Without exception, all these experts have said that a stone arch crossing the highway at right angles is the best construction.

Such a bridge estimated to cost about $50,000, with a middle arch of sixty feet span and two side arches of thirty-five feet each is planned by the railroad company, the side arches to accommodate future trolley lines on the highway. To build such a bridge requires a diversion of the highway, making it 280 feet longer than the old location along the original road, and means that it will take less than one minute longer to walk from Lodi to West Salem, or less than one half minute longer to drive that distance than it formerly took over the old road.

On the other hand the engineers all agree that a skew bridge at the old location of the road is not beyond engineering skill and the various standard styles of such bridges will not cost more than 50 to 100 per cent more than the stone arch planned by the railroad company.

Counsel for plaintiff urged that the paramount interest of the public on the highway requires that the old diagonal course of the highway be retained, no matter what the cost of engineering difficulties, and the sole practical reason assigned for this demand is that thereby a longer view of approaching automobiles might be had; that this is important because horses shy at automobiles more in the country than they do in the city.

It is in evidence that of the 775 vehicles which passed this pQint during two days in April this year, three were automobiles. The contour of the old road is somewhat rolling, so that the slight hills on it might hide approaching vehicles. It also appears that there is a clear view of approaching teams for a distance of from 520 to 700 feet through the stone arch planned by the railroad company. This is twice the view one has in the city where automobiles run out of intersecting streets from behind obscuring business blocks. When we remember that the middle span of the stone arch planned on the diverted road is sixty feet and the road macadamized and of a regular grade, it would seem that one accustomed to pass automobiles on the ten foot traveled portion of a country road would have little trouble in passing an automobile under or aproaching this arch. We think the automobile difficulty is as trivial as the 280 feet extra distance on the road.

Again, the suggestion of plaintiffs which involves piers or abutments in the middle of the diagonal road, must be discarded on account of the ruling in Lake Shore & M. S. Ry. v. Elyria, 69 Ohio St. 414 [69 N. E. Rep. 738], leaving the only possible construction a steel structure, either on a skew, or with extra long span if the abutments are squared. The center line of the road would, run for 120 feet under this structure and it would seem that the noise and vibration resulting from the passage of trains over such structure has been forgotten by those who suggest it for the benefit of drivers upon the highway.

No man would dare to drive under such a bridge when a train was passing over it. Travel on the highway would come to a standstill at such times. But not so with the stone arch under which one might pass without knowledge whether a train was on top or not.

Our conclusion is that as all engineers agree that the stone arch is the best for the public traveling on the railroad, and as but trivial inconveniences result to the public traveling on the highway, from the diversion of the road, that an injunction should not be granted against the diversion of the diagonal road as planned by the defendant railroad , company.

As to the diversion of the North and South road, called the Chatham road, we are not satisfied that the railroad company has or contemplates restoring it to its former usefulness. The map exhibited to us shows a reasonable and satisfactory «diversion of the travel to the westward which formerly passed over the Homerville road and will now pass on the proposed road north of the railroad until it reaches the arch over the Black river, under which it will pass to the Homerville road on the south, but it is unreasonable to require those traveling between Chatham and West Salem to go so far east as the first bridge we have considered, without making the way to it as short as' it reasonably can be made. , We. think a fair solution of this difficulty is offered by the opening of a diagonal road about 1300 feet long in a northwesterly direction from station C on the map, to a point on the Chatham road, 1000 feet northerly from station B, at the junction of said road with the new road north of and parallel to the railroad.

This new diagonal road should be macadamized and correspond in all respects with the diversion of the West Salem road, and the distance over it would be only about 900 feet longer than over the old Chatham road through the West Salem road.

There is little travel over this road, and driving between Chatham and West Salem would probably take no longer than it did before, as the road would be better. Incidentally those' living on the Chatham road would reach Lodi, the nearest village, much easier than ever before.

There is one objection to the creation of the new roads suggested, and that is that the public authorities would have considerably more public highway to take care of. The suggestion of Judge Washburn that the railroad company contribute the sum of $500 for the maintenance of these extra roads is a good one. It would seem, also, that upon the completion of the new roads, the Chatham road south of the railroad, and the Homer-ville road from the West Salem road west to Black river would be useless, and might be abandoned and vacated, in ease the proper public authorities shall hereafter deem it wise to do so.

Decree may be drawn pursuant to this opinion in this case and cases numbered 138 to 143; injunction against the diversion of the West Salem road, as planned by the defendant company, is refused, but the railroad company is enjoined from diverting the Chatham road in any other manner than as suggested by this court. The case will be continued until the improvements are completed, so that the progress of the work may be subject to the control of the court. The decree may also specify in detail the changes and plans of the defendant with regard to both roads, and should be submitted to the court, with exceptions, if any, of opposing counsel, in writing, within ten days.

Henry and Marvin, JJ., concur.


author: HENRY, J.

text:
    CONTRACTS — COVENANTS.
    [Cuyahoga (8th) Circuit Court,
    June 8, 1908.]
    Marvin, Winch and Henry, JJ.

      Henry C. Bowman v. Bernhard Schatzinger et al.
    Time of Performance Extended by Mutual Consent Waives Breach of Other Conditions.
    Where time for performance of an agreement is by mutual consent of the parties extended in a supplemental contract, the right is waived to subsequently sue for a cancellation of the original agreement for breach of its conditions by the other party thereto, and the parties will be understood to have covenanted, at the time of the making of the supplemental agreement, to treat the contract as in force in all respects, notwithstanding anything which may have happened prior to that time.
    Appeal from common pleas court.

      Weed, Miller & Nason, for plaintiff.

      P. J. Kassulker, for defendants.

      Affirmed, no op., Bowman v. Schatzinger, 81 O. S. 565.

   HENRY, J.

This is an action for the cancellation of record of a contract entered into between the parties February 7, 1900, as amended by supplemental agreement between them entered into on or about May 20, 1903, but dated May 1, 1903, and to quiet plaintiff’s title to a part of the real estate therein described.

Plaintiff and defendant were the owners of adjoining lands situated in what was formerly the village of Glenville, but now a part of the city of Cleveland. The original agreement recites that “said parties, for their mutual interest, desire to allot said lands”; that “said Schatzinger is familiar with the allotting of lands, improving the same and handling allotments”, and therefore it is agreed, “that the said Schatzinger is to make an allotment of the lands of said two parties substantially like the plat”, which was made part of their agreement.

A reference to the plat discloses that the lands of the plaintiff, Bowman, consisted of two long narrow tracts of six acres and one acre respectively, the west end of the one acre tract slightly overlapping the east end of the six acre tract. The east end of the smaller parcel fronts on Doan Street, and at the time the agreement was entered into, this small frontage afforded the only street access to and from the plaintiff’s lands. The proposed allotment contemplated the opening np of streets in such manner as to give ample additional access to both of these tracts, through the defendant’s lands. One of the proposed streets, called South Boulevard, was to run westward from Doan Street, a short distance south of and parallel to the general trend of plaintiff’s lands. This street was to be intersected by Haven and Hampden Streets and to terminate in the North Boulevard, which was so laid out as practically to bisect plaintiff’s six acre tract lengthwise.

Thus plaintiff’s lands were to be opened up in connection with defendant’s lands in such manner as to facilitate the sale of lots in both. Without some such arrangement with either the defendant or some other adjacent landowner, it was manifestly impracticable for plaintiff to market his property in this manner. The contract further provides:

“Said Sehatzinger is to grade, flag and curb said streets; put in sewer, water and gas pipes and also pave the same with suitable brick, and further improve said lands as, in his opinion, is wise and practicable; the work to be started as soon as possible in the spring of 1900; South Boulevard from Doan to Haven Streets to be first improved and in all respects finished, but no further work to be done on North Boulevard until after said Sehatzinger shall have sold three-fourths of the lots in said proposed allotment lying south of North Boulevard. So soon as said proportion of said lots are sold, then said Sehatzinger to proceed with the improvements on North Boulevard and on Hampden Street, completing the same without unnecessary delay.
“In ease the lots on the north side of South Boulevard between Doan and Haven Streets are not sold by May 1, 1903, the interest in said lots at that time owned by said Sehatzinger, his heirs or assigns, shall be appraised by disinterested persons as follows: one to be selected by said Sehatzinger, his heirs or assigns; one by said Bowman, his heirs or assigns, and if the two cannot agree, then they to select a third, and the decision of any two of the three thus chosen shall be binding on both parties; and said Bowman, his heirs or assigns, shall thereupon pay to said Sehatzinger, his heirs or assigns, the value of the interest of said Sehatzinger so established by said appraisers, upon receipt from said Sehatzinger, his heirs or assigns, of lawful conveyance of said interest, free and clear of all encumbrance, accompanied with abstract of title.”

The remainder of the original contract relates to the manner of meeting the expenses of the undertaking and the division of the proceeds, specifically providing, however, that “said Sehatzinger is to have full charge of allotting, improving and disposing of said lands.”

The key to the opening up of plaintiff’s lands was manifestly the opening and improving of South Boulevard from Doan Street to Haven Street, and thence along Haven Street northward to the south line of plaintiff’s property.

The contract provided, as already indicated, that the street improvements were “to be started as soon as possible in the spring of 1900; South Boulevard from Doan to Haven Streets to be first improved and in all respects finished”. This was not done, but, on the contrary, the defendant proceeded to open up and improve other streets in the allotment in such manner as to facilitate the sale of his own lands.

For three years scarcely anything was done to improve the east end of South Boulevard between Haven and Doan Streets, nor has anything been done to this day upon Bowman’s lands, excepting a little grading and the planting of some trees along the proposed line of North Boulevard.

During said three years plaintiff. gave little personal attention to the defendant’s management of the allotment, although he kept informed of its progress from time to time through defendant’s engineer. Soon after May 1, 1903, and about three and a quarter years after the making of the original agreement, plaintiff advised defendant that the time having arrived for the appraisal provided for therein, he had appointed as appraiser Daniel R. Taylor, and requested that defendant appoint an appraiser also. The defendant replied that he had given the matter of an appraisal'no thought and suggested an extension of the time therefor; whereupon both parties entered into the following supplemental agreement modifying the original contract:

“This is to certify that all the terms and conditions to be performed by Henry C. Bowman and Bernhard Schatzinger on May 1, 1903, under the terms of a certain written contract between . Bernhard Schatzinger and Henry C. Bowman, dated February 7, 1900, are by mutual consent to be performed on or before June 1, 1903, to which time the performance of said terms and conditions are extended, without, however, invalidating or changing any other provision of said contract.”

Nothing further was done by the parties until the later date agreed upon had come and gone. On June 9, however, plaintiff served upon the defendant notice of cancellation of the entire agreement and demanded that defendant execute a quitclaim deed of plaintiff’s part of the property so that plaintiff’s title might be relieved of the cloud which their agreement and the recording thereof east upon it.

The defendant paid no attention to this notice and demand, but soon afterwards went forward with and completed the improvement of the east end of South Boulevard and the north end of Haven Street nearly up to plaintiff’s line. Not until defendant had completed all the street improvements with respect to which he was in default did plaintiff commence this action to enforce the rescission contemplated by his notice and demand of June 9, 1903. Except for the defendant’s delay in fulfilling the agreements by him to be performed, plaintiff at the time he began his action had acquired nearly all of the access to and from his lands which he sought to gain under the agreement. During the pendency of the suit enough lots have been sold in‘ defendant’s part of the allotment to make it incumbent upon him, under the terms of the original agreement, to go forward now with the improving of North Boulevard, which, as already stated, practically bisects longitudinally plaintiff’s larger tract, and which when improved, will open up the lots in said tract to immediate sale for building purposes.

The defendant offers two excuses for his failure to improve the east end of South Boulevard at the outset of the undertaking: First, he says that the agreement should be so construed as to qualify his obligation in this behalf and limit it by the words “and further improve said lands as, in his opinion, is wise and practicable.” Secondly, he shows that because Doan Street was not so improved, when said agreement was entered into nor at any time within the next three years, as to permit proper drainage from the east end of .South Boulevard, it was not wise and practicable to improve that portion of South. Boulevard during that period of time.

We do not regard either of these excuses as valid, for we do not construe the agreement as defendant construes it, nor do we find anything in the agreement to indicate that the covenant .requiring South Boulevard from Doan to Haven Streets to be first improved and in all respects finished, was in any sense dependent upon the action or nonaction of the public, authorities in sewering Doan Street.

Were it not, therefore, for the supplemental agreement, already quoted, we should have no hesitation in holding that the plaintiff was entitled to rescind the contract for defendant’s failure to perform the same. At the date when that supplemental agreement was entered into, the terms and conditions required by the original contract to be performed by defendant were essentially unperformed. The plaintiff, however, instead of standing upon this breach by defendant and refusing to be further bound by the contract, .covenants with him “that all the terms and conditions to be performed by Henry C. Bowman and Bernhard Schatzinger on May 1, 1903, under the terms of a certain written contract between Bernhard Schatzinger and Henry C. Bowman, dated February 7, 1900, are by mutual consent to be performed on or before June 1, 1903, to which time the performance of said terms and conditions are extended, without, however, invalidating or changing any other provisions of said contract.”

This amounts to nothing else, as we view it, than an agreement that whatever remained undone on May 1, 1903, which should have been done on that date, was not to be accounted such a breach of the contract as to authorize either party to repudiate it. It was, on the contrary, a covenant by both parties that they would treat the contract as in all respects in force, notwithstanding anything that might have happened prior to that time.

True, the extension contemplated by the supplemental agreement expired by its terms on June 1, and it was not until after that date that plaintiff assumed to rescind the entire agreement. But plaintiff meanwhile took no new steps to secure an appraisal and it was certainly not in the contemplation of the parties that the improving of the east end of South Boulevard, which had theretofore been neglected, should all be done in the interval of twelve days, between May 20, 1903, when the supplemental agreement was actually executed, and.the first of June next succeeding. It simply provided, as we read it, that the performance of all the terms and conditions which were to have been accomplished May 1, 1903, might be postponed until June 1, 1903, and that nothing which had theretofore failed of due performance should be fatal to the continuance of the contract. The right of rescission, for any breach of the original contract occurring before the execution of this supplementary contract, was effectually waived when the latter was executed, and it cannot be said that there was any such breach intervening between that time and June 9, as to authorize a court of equity now to aid an attempted rescission on that date, especially as the plaintiff waited two and one-half years longer before bringing his suit.

The original agreement was then so far executed (and still more so now) as to make it utterly impracticable to restore the defendant to his former position. When, therefore, after the lapse of more than three years, and in spite of defendant’s dereliction, the plaintiff "expressly reaffirmed that agreement and consented to'extend the time of its performance, he cannot be heard to change such affirmance into disaffirmance before three weeks had elapsed and without any new cause intervening save mere inaction for that period. By such disaffirmance he seeks to retain all the realized advantage of his contract and to condemn defendant to all the disadvantage of its annulment. Whatever advantage or remedy at law may be available to plaintiff under the circumstances, he cannot, after having entered into the supplemental agreement and for cause theretofore arisen, successfully invoke the interposition of equity in furtherance of the result thus indicated. Seeds v. Simpson, 16 Ohio St. 321.

There are many other questions of fact in the voluminous transcript of testimony admitted in evidence before us here, but we think it unnecessary- to examine them in view of the conclusions which we reach regarding the effect of the supplemental agreement, as we construe it.

The plaintiff is not, we think, entitled to the relief for which he prays, and he must be remitted to his remedy if any, in damages, for the matter of which he complains.

The petition will be dismissed.

Marvin and Winch, JJ„ concur.


text:
    PARTNERSHIP.
    [Cuyahoga (8th) Circuit Court,
    June 14, 1909.]
    Marvin, Winch and Henry, JJ.
    Frank E. Taplin v. Christopher F. Emery.
    Mere Designation in Articles of Agreement of Parties as Partners without Participation in Profits or Losses not Partnership.
    Absence of the ordinary indicia of a partnership, including mutual agency and mutual sharing in profits and losses, precludes the idea of partnership. Hence, a partnership agreement, so called, by which two parties named aré to invest stipulated sums of capital, exclusively manage the business of the firm, receive fixed sums as monthly salaries, a percentage of interest and share in the profits, and protect against any loss whatever of capital contributed, by a third party who is to receive a stipulated rate of interest without regard to the profits or losses of the firm but having no part in the management of the firm business, does not constitute such third party a member of the firm, notwithstanding he is designated a “partner” of the firm, his money denominated “capital” and he is accorded power of dissolution of the firm.
    Error to common pleas court.
    0. F. Taplin, for plaintiff in error.

      Cook, McGowan & Foote, for defendant in error.
   HENRY, J.

The sole question in this proceeding in error is as to the construction of a partnership agreement attached to and made a part of the amended petition below, by which it is claimed that the defendant in error became and was a partner in the partnership firm of Denison, Prior & Company, and is liable, as such, for said partnership’s debts. Said agreement is as follows:

“Made at Cleveland this first day of May, 1899, by and between:
“Charles E. Denison, party of the first part;
“Leland W. Prior, party of the second part, and
“C. E. Emery, party of the third part;
“Witnesseth, Whereas, the above named parties desire to engage as partners in the business of buying and selling bonds, stocks and investment securities, also to do a brokerage business in stocks, under the firm name of Denison, Prior & Co.
‘ ‘ Said parties are to respectively contribute in cash for the capital of said partnership the following sums, to-wit:
“Party of the first part.......................$50,000
“Party of the second part..................... 50,000
“Party of the third part.......................25,000.
“Said parties of the first and second parts hereby bind themselves each to give their entire time, skill, and ability to the promotion of said business, and are to have full and entire charge of the business of said firm.
“It is mutually agreed that the parties of the first and second parts shall be credited monthly from said business, as salary, the sum of three hundred ($300) dollars, during the life of this partnership, also interest at the rate of 6 per cent per annum on the amount of their capital; said interest to be credited semiannually.
“It is also mutually agreed that the party of the third part shall be paid by the firm as full compensation for the use of his capital interest on same at the rate of 8 per cent per annum, payable semiannually, without regard to the firm’s profits or losses, and the parties of the first and second parts firmly agree to protect the party of the third part to the full extent of their power and resources, against any loss of his capital.
“Any profit earned over and above the salaries and interest charges mentioned above, shall be divided equally between the party of the first part and the party of the second part, and each shall be entitled to withdraw his share at the end of each year, or to leave same to his credit, on which 6 per cent interest shall oe paid by the firm.
“It is also agreed that any losses by the firm shall be shared equally by the party of the first part and the party of the second part.
“The obligations of this agreement shall be binding upon the parties hereto for a period of three years from May 1, 1899, and as much longer as mutually agreeable to the parties hereto, it being understood that the parnership shall terminate any time after three years upon the giving of' three months’ notice in writing, of such desire by any one of the three parties interested.
“If for any reason this partnership should be terminated, it is mutually agreed that after paying each party the amount of his capital, and interest due thereon, the remainder of the property and assets shall be divided equally between the party of the first part ,and the party of the second part.
“It is hereby further agreed that the party of the first part and the party of the second part shall not, during the term of this agreement, endorse any paper except for the purpose of the partnership nor become surety in any manner or in any sum whatsoever.
“It shall be the policy not to enter into any large or important contracts without the consent of both parties of the first and second parts, and it is also mutually agreed that the firm will not speculate in stocks or buy or sell listed stocks for its own account.
“In Witness Whereof, we have hereunto set our hands and seals the day aforesaid.
“Charles E. Denison,
“L. W. Prior,
“C. F. Emery.”

Plaintiff in error calls especial attention to the following features of this agreement:

First. That Emery by his own agreement is called a partner in this firm.
Second. That'the words “and company” in the firm name imply that Denison and Prior were not the sole partners in the firm.
Third. That the sum advanced or contributed by Emery is denominated and treated as “capital.”
Fourth. That Emery is accorded by the agreement the power of dissolution of the partnership.
Fifth. That although, as among the partners, Emery is given priority over the other two in the liquidation of the firm assets, yet a proper interpretation of their agreement gives him no such priority as against the firm’s creditors, so that he has in fact risked his money as capital in the firm business in a sense different from any one merely lending money to the firm.
Sixth. The agreement by its own terms gives him a certain control over the business by reason of its limitation of salaries to be paid to Denison .and Prior, a covenant inconsistent with the exclusive and sole control of the partnership business by Denison and Prior alone.
Seventh. By the agreement Emery is given some share in the profits, in the sense at least that he was interested in there being profits, so that he might not have to resort to the guaranty by the other two parties to the agreement.

On the other hand, it is evident that nearly all the incidents and criteria of a partnership are expressly excluded by the terms of the agreement itself. The mere fact that Emery himself as well as the other parties to this agreement have seen fit to denominate themselves partners does not make them such, either as to one another or as to the world. Oliver v. Gray, 4 Ark. 425; Sailors v. Printing Co. 20 Ill. App. 509.

Indeed, it is substantially conceded that such is the law, and if it were not, authorities to that effect might be multiplied.

What, then, in the last analysis is the crucial test of the fact of partnership, where th’e question is, as in this case, uncomplicated by any holding out as such?

The first paragraph of the syllabus of Harvey v. Childs, 28 Ohio St. 318 [22 Am. Rep. 387], is as follows:

"The liability of one partner for the contracts of another, when not estopped from denying the liability, is founded on the relation they sustain of being each principal and agent in the joint business. That relation is, therefore, the true test of a partnership, and the liability rests on the ground that it was incurred on the express or implied authority of ‘the party sought to be charged.”

In the opinion by Day, J., at page 321, the courts says:

"Although a partnership may be said to rest upon the idea of a communion of profits, nevertheless the foundation of the liability of one partner for the acts of another, is the relation they sustain to each other, as being each principal and agent. That relation, it would seem, then, constitutes the true test of a partnership liability, and rests upon the just foundation that the joint liability was incurred on the express or implied authority of the party sought to be charged.
"But if the relation of principal and agent be regarded as the test of a partnership and consequent joint liability, the question still remains, what shall be deemed sufficient evidence of that relation, or to raise the implication of authority to incur the liability in question?
“To this end numerous tests have been supposed to exist; but the best considered and least objectionable is that of a community of interest in the profits of a business or transaction as a principal or proprietor. Parsons, Partnership 71 and note; Collyer, Partnership Secs. 25, 44. See also Story, Partnership Secs. 36, 38, 60; Berthold v. Goldman, 65 U. S. (24 How.) 536 [16 L. Ed. 762].
“But this test is valuable as a rule chiefly because it evinces a relation between the parties, where each may reasonably be presumed to act for himself and as agent for the. others, , and to that extent establishes the fact that the liability was incurred on the authority of all so participating in the profits. Participation in the profits of a business, however, cannot be regarded as a rule so universal and unrelenting as to be unjustly applied to a ease where a debt is incurred by one who cannot be said to be acting, in the particular transaction, as the agent or on behalf of the party sought to be charged. Therefore, on principle, the true test of a partnership, at last, is left to be that of the relation of the parties as principal and agent, to be proved by any competent evidence; for when they sustained that relation, a joint liability may be said to have been incurred by the authority, or on behalf of each of the parties so related. The tendency of the more modern authorities, both, English and American, is to this conclusion. ’ ’

So far at least as this state is concerned, this analysis of the subject would seem to be conclusive; and the element of mutual agency seems to be expressly excluded, so far as Emery is concerned, by the terms of this agreement.

Cases may be, of course, and they are cited in abundance, in support of the proposition that a partnership may exist with any of the usual elements wanting. There are also eases where nearly all the usual elements of a partnership are wanting, and yet a partnership has been held to exist, but we find no case v, here all the important elements, including that of mutual agency and mutual sharing in the profits and losses are wanting, and yet the existence of a partnership is affirmed. By assuming in this case that the agreement in question prima facie constitutes the partnership which it purports in name to create, it is easy to show seriatim that the absence of the ordinary indicia of partnership need not be fatal to its existence as such, but if we start with the contrary assumption, it is impossible to construct a partnership out of the meager elements in this agreement on which the plaintiff relies. And the same is true if we start without any presumption whatever and merely balance the argument pro and con.

Reliance is put upon Hunter v. Newman, 3 Dec. 350 (1 N. P. 307), which is affirmed, no op., Hunter v. Newman, 52 Ohio St. 659, 660, and an examination of that case discloses that although the facts are not unlike those in the case before us, there is this essential difference, namely: that the contract is in terms an agreement for “a limited partnership”, under Sec. 3141 R. S. (Sec. 8036 G. C.), and it is not controlling in respect of the question now under consideration.

It would unduly prolong this opinion to undertake an analysis of the great multitude of cases which bear in one way or another upon the construction of this agreement. Suffice it to say, that we do not find in its provisions any sufficient evidence that it constituted Emery a partner in the firm of Denison, Prior and Company.

But it is urged further that though it may not be sufficient to that end, it may nevertheless suffice as a basis for the introduction in evidence of the partnership books, showing that Emery’s contribution to the assets of the firm was charged to capital account, and that Emery was otherwise treated in the bookkeeping as a partner, consistently with the terms of the agreement; also that the agreement affords sufficient basis for the introduction of the published notice of dissolution, which though never brought to the plaintiff’s attention, might be deemed to afford some evidence of Emery’s status as a partner. We fail to find any merit in this contention. None of these items of evidence proposed to be introduced would operate with the agreement to enlarge its terms and limitations.

We hold that there is no error in the record before us, and the judgment is affirmed.

Marvin and Winch, JJ., concur.


author: RICHARDS, J.

text:
    ALIMONY — RES ADJUDICAT A — SUBSEQUENT GROSS NEGLECT.
    [Lucas (6th) Court of Appeals,
    July 7, 1913.]
    Kinkade, Richards and Chittenden, JJ.

      Herma M. Cadwell v. Frank W. Cadwell.
    Alimony to Wife for Gross Neglect of Duty, by Husband, not Barred by Former Refusal of Alimony to Wife.in other Jurisdiction of State in Prior Actions.
    Where, in prior actions in another jurisdiction in this state, the courts have held in suits between the same parties for divorce and alimony, that the separation of the parties was caused by the fault of the wife, but that she had not been guilty of willful absence for three years, nor of gross neglect of duty, nor extreme cruelty, and have adjudged that the husband should make a fixed monthly payment for the support of the children, but refused an allowance of alimony to the wife, such adjudications are final and conclusive as to conditions then existing, but do not preclude an allowance of alimony on grounds subsequently arising.
    Appeal from common pleas court.

      Marshall <& Fraser and Berkeley Pearce, for plaintiff.

      Bichard H. Lee, for defendant.

      Affirmed, no op., Cadwell v. Cadwell, 91 O. S. 000; 60 Bull. 428.

   RICHARDS, J.

This is an action brought by the plaintiff against her husband for the purpose of securing an allowance of alimony. The parties to this action have had a great deal of litigation in the courts of Cuyahoga county over their marital troubles, two actions for divorce having been brought in that county by the husband and divorce refused in each case. The first of these actions resulted in an allowance of alimony to the wife, from which allowance the husband appealed to the circuit court, which latter court on a hearing of the case, in the decree rendered December 16, 1911, refused the wife alimony but gave her the custody of the two children of the parties and ordered the husband to pay to her for the support of the children $30 on the first day of each month. The prayer for alimony was, by the circuit court specifically denied.

It appears from the evidence in this case that Mrs. Cadwell resided up to the time of her marriage to the defendant, which occurred on June 15, 1898, in this county and that after their marriage they resided in the city of Cleveland, which city had always been the home of the husband. In the year 1909, she left him, taking the two children, and came to live with her parents in Lucas county, and has continued to reside here from that time. Certain matters must be considered to have been adjudicated between these parties and not now open to further discussion or consideration. We must take it for granted as held by the circuit court in Cuyahoga county that the separation of the parties in the year 1909 was occasioned not because of habitual drunkenness of the husband as was claimed by the wife but by an ill grounded jealousy on her part, and that as held in the decision of that court the evidence was not such as required her to leave him permanently. In the second divorce case brought by the husband, after the decision of the circuit court to which reference has just been made; the common pleas court held in a decision rendered May 24,1913, that she had not been guilty of willful absence from her husband for three years nor of gross neglect of duty or extreme cruelty towards him. These matters so adjudicated by the courts in that county will not be opened up for further examination by this court.

The plaintiff in her petition for alimony in this county avers that her husband has been guilty of gross neglect of duty in failing to provide for her since the decision rendered by the circuit court and since her offer to return and live with him and her ineffectual attempt to bring about a reconciliation between them. It is insisted by counsel for Mr. Cadwell that this court has no jurisdiction to allow alimony to the wife because of the decree rendered in the circuit court in Cuyahoga county. That court after clearly recognizing the distinction existing between alimony on the one hand and an allowance for the support of the children on the other, as already stated, specifically refused alimony under the facts then existing. Mrs. Cadwell was then claiming alimony by reason of the alleged habitual drunkenness of her husband, and the court found that the drunkenness was not of such frequency as to be habitual, and therefore and for that reason refused to allow her any alimony. Her present claim is based upon occurrences since the date of that decision. It is not the law that the former decision is an adjudication that no cause for the allowance could thereafter arise. The allowance which was made by that court for the support of the children is in no sense of the word a provision for her by way of alimony.

We call attention to Pretzinger v. Pretzinger, 45 Ohio St. 452, 459 [15 N. E. Rep. 471; 4 Am. St. Rep. 542] — where the distinction is clearly pointed out by the Supreme Court. Indeed it was held by the Supreme Court in the case of Rogers v. Rogers, 51 Ohio St. 1 [36 N. E. Rep. 310], that an allowance for the maintenance of minor children was not appealable. While the law has always been in Ohio that the allowance of alimony is appealable, by act, 90 O. L. 186 (Sec. 8035 G. C.), the right to appeal from the allowance for the maintenance of children was first granted. I only call attention to this decision and the latter statute to indicate the distinction between alimony and an allowance for the maintenance of children. Our Supreme Court in Fickel v. Granger, 83 Ohio St. 101, 106 [93 N. E. Rep. 527; 32 L. R. A. (N. S.) 270; 21 Ann. Cas. 1347], says that “Alimony is an allowance for support, which is made upon considerations of equity and public policy. * * * It is based upon the obligation, * * * that the husband must support his wife.” We are then at liberty to determine the claim of the wife to alimony in this case and render such decree as the facts may justify, unhampered by the refusal of the circuit court in Cuyahoga county to allow her alimony on the facts existing at the time of the decision in that court, in December, 1911.

The evidence tends to show that subsequent to said decision she, in good faith, sought a reconciliation with her husband and offered to return and live with him and- resume their marital relations. The husband strenuously insists that such offer was not made in good faith but only for the purpose of enabling her to secure a portion of his property. When asked on the witness stand to state what would satisfy him that she was acting in good faith in making her offer, he was unable to state or at least failed to state what would be sufficient.

We are not willing to concede that his determination that she was acting from a mercenary motive and not in good faith is final. On the contrary, her motives are to be determined by the court in which her action is pending. If his arbitrary conclusion that her offer to return was not in good faith should be binding and should be persisted in by him, then the fact that she left him originally for an insufficient cause would always prevent her from obtaining that support and maintenance to which a wife is entitled.

It may be noted in passing that it appears from the evidence that the husband offered, before the trial in the circuit court of Cuyahoga county, to take the wife back to his home and expressed a willingness to become reconciled and that they should thereafter live together as husband and wife. She insists that this offer so made by the husband was not in good faith but for the purpose of preventing her obtaining an allowance of alimony in the case then pending and she urges that his subsequent refusal to accept her offer to return is confirmation of her view that his own offer was not made in good faith.

The rule governing the rights of the parties under the circumstances existing in this case, seems to be clearly and concisely stated in 9 Am. & Eng. Enc. Law 775 :

“Where the parties have separated by consent or one has left without justifiable cause, if one party seeks a reconciliation and offers to return, the party declining the offer is not entitled to relief but in law becomes a deserter.” See also cases cited on the same page.

We find that from the time of her offer to return, made since the circuit court decision in Cuyahoga County, the defendant has been guilty of gross neglect of duty and that the plaintiff is entitled to an allowance of alimony for her support.

The evidence shows that the defendant is the owner of eeriain real estate in the city of Cleveland and described in the petition, having a rental value of $80 to $100 per month, and that he is in receipt of a salary of $80 per month. He is now paying to the plaintiff for the support of the children $30 per month which we assume will be continued. "We allow her as alimony for her own support the sum of $40 per month, payable $40 cash and a like payment on the first day of each month, and we adjudge the costs against him including an attorney’s fee to her counsel for services in this case in the sum of $100.

In view of the contention that her .attempted reconciliation and offer to return has not been made in good faith, this court expressly retains control and jurisdiction over this case with the right to make such modification in the allowance of alimony as the subsequent conduct of the parties, or changed conditions may render necessary.

Kinkade and Chittenden, JJ., concur.