author: Marvin; J.; Henry, J.,

text:
    FAILURE TO ESTABLISH A PARTNERSHIP.
    Circuit Court of Cuyahoga County.
    P. E. Nielsen v. C. E. Taylor.

    Decided, May 24, 1909.

      Partnership — Representations to Third Person Not Conclusive.

    It is not conclusive that a partnership exists between two persons that they represented themselves as partners in their dealings with third persons, if plausible reasons are given for so representing themselves, and the evidence otherwise establishes the fact that no partnership in fact existed between them.

       Affirmed without opinion, Nielson v. Taylor, 83 Ohio State, 442.

   Marvin; J.; Henry, J.,

concurs;

Wincii, J., not sitting.

The relation of the parties here is the reverse of the relation in which they stood in the court-below. The terms plaintiff and defendant however, as used in this opinion, refer to the parties as they stood in the original case.

Several suits- were brought by the plaintiff against the defendant, each upon an account for' services claimed to have been rendered by the plaintiff to the defendant. In each case the defendant answered that whatever services were rendered by the plaintiff were rendered not to the defendant, but as a member of a co-partnership composed of the plaintiff and the defendant. These' several cases were originally brought before a justice of the peace and each was appealed to the court of common pleas, where they were consolidated and tried as one case. It was admitted at the trial, that if the plaintiff was entitled to recover the amount claimed in the several actions was the proper amount, so that the only issue submitted to the jury was the question of whether the plaintiff and defendant were partners at the • time the services were rendered. The jury-returned a verdict for the plaintiff and judgment was entered upon that verdict, and it is to reverse this judgment the present proceeding is prosecuted.

The charge to the jury is not complained of and the only question left for this court to pass upon is whether the verdict is so manifestly against the weight of the' evidence as to require a reversal. The plaintiff testified unequivocally that he was employed by the defendant for which he was to be paid $100 a month and to receive one-third of whatever profits should be made out of a business in which he was so employed by the defendant. He said the only talk of partnership between him and the defendant was that the defendant .held out to him that he might thereafter become a partner. The defendant, however, testifies that a partnership was formed and he introduces two contracts, one of the date of July 20, 1905, the opening sentence of which reads:

“This agreement entered into this- 20th day of July, 1905, between the American Automatic Weighing Machine Co., party of the first part and the N. C. T. Stamping & Mfg. Co., composed of P. E. Nielsen and C. E. Taylor, parties of the second part.”

This is a contract by which the party of the second part contracted to manufacture certain machines .for the party of the first part, and it is signed on behalf of the party of the second part by P. E. Nielsen and Charles E. Taylor, the plaintiff and the defendant in this action. Another contract was introduced, the opening sentence of which reads: “Articles of agreement made and. concluded at Cleveland, Ohio, this 11th day of December, 1906, and by and between N. E. Nielsen and C. E.' Taylor, known as the N. C. T. Stamping & Mfg. Co. party of the first part,” and “John H. Williams, party of the second part,” and this is a contract whereby the party of the first part undertook to manufacture certain devices for the party of the second part, and this is signed on behalf of the parties of the first part in these words: “N. C. T. Stamping & Mfg. Co., by C. E. Taylor, P. E. Nielsen.”

The name C. E. Taylor as appears upon each of these contracts is admitted by the plaintiff to have been written by himself, and these two contracts unexplained, tend strongly to support the proposition that Taylor was a partner in this business carried on as the N. C. T. Stamping & Mfg. Co., but the testimony of the plaintiff is that he signed these with Nielsen to. aid him in securing two contracts and that whatever they tended to represent to the other parties and to the contracts they did not represent the true relation between himself and Nielsen. The jury believed Taylor’s testimony. We find no reason why they should not have believed it. Believing it, they returned the only verdict which could have been returned properly, and the judgment is affirmed.


source: Caselaw Access Project

author: Marvin, J; Henry, J.,

license: Public Domain

text:
    REPLEVIN FROM WAREHOUSEMAN.
    Circuit Court of Cuyahoga County.
    William P. Herig et al v. William Amos.
    Decided, May 24, 1909.

      Replevin from Warehouseman of Goods of Plaintiff — Failure to Notify Plaintiff of Proceedings — Actual Notice to Him in Time to Have His Rights Litigated.

    An action against a. warehouseman for the value of goods belonging to plaintiff, stored with the defendant and replevined by third parties, can not be maintained on the ground that the warehouseman was negligent in his failure to notify the plaintiff promptly of the bringing of the replevin proceedings and became a party thereto in time to have liis title to the goods adjudicated.

      J. J. McCormick, for plaintiff in error.

      Ta/nney & Barber and O. W. Broadwell, contra.
   Marvin, J; Henry, J.,

concurs;

Winch, J., not sitting'.

The relation of the parties here is the reverse of the relation in which they stood in the court below. Thé terms plaintiff and defendant, as used in this opinion, spealr of them as they were in the original ease. The defendants were co-partners-doing business as the Eagle Storage & Moving Company and as a part of their business they received into their warehouse and stored for hire, goods for such customers as applied for that purpose to them. The plaintiff brought suit alleging that on the 3d of July, 1902, he delivered to the defendants for storage on his account a large quantity of goods, describing them, of the value of $1,086. And that he undertook and agreed to pay for such storage $4 per month, and that on the 4th of December, 1906, the plaintiff demanded said goods from the defendants, tendering the amount of the charges for storing the same, as agreed under the contract, and including cartage of the goods; that upon such'•demand, the defendants informed the plaintiff that the goods had passed beyond their possession and control, and that they did not know where they were. The plaintiff further alleges that he was notified on the 17th of November, 1906, by the attorney of the defendants that the goods had been taken from them in an action in replevin, and that this was the first notice he had of such replevin action; whereas, he says, such replevin action was begun and the goods taken on the 29th of August, 1905. And so, he charges, that by the gross negligence of the defendants in failing to give him early notice of such action in replevin he was deprived of an opportunity to defend himself and his title to the goods in that action by reason of which the goods have been lost to him and he prays for their value in damages with interest.

The defendants admit that, they received the goods under a contract as alleged in the petition; that they did give notice to the plaintiff of the bringing of the action in replevin on the 17th of November, 1906, as alleged in the petition and they further aver that they made all reasonable effort to ascertain the whereabouts of the plaintiff and give him notice of such action, but they had no knowledge of his place of residence, and they were unable to get notice to him earlier than the date already spoken of. And they further aver that the plaintiff bad notice of such action in replevin while it Vas pending and that he neglected to protect his rights in that action, but abandoned it, and thereby by his own negligence failed to protect himself if he was entitled to any protection in the action in replevin. And then by way of cross-petition the defendants aver that a considerable amount of money is owing to them by the plaintiff for storage and cartage of the goods. The result of the trial was that the plaintiff obtained a judgment against the defendants, apparently for the value of the goods, less the amount claimed and shown as due to the defendants for storage and cartage. To reverse such judgment this proceeding is prosecuted.

The facts as shown bjr the evidence are, that the plaintiff did deliver a considerable quantity of merchandise, as is set out in his petition, to the defendants on the 3d of July, 1902; that he did not keep the storage charges paid up; that on the 29th of August, 1905, these goods were taken in replevin from the defendants in an action brought by one A. J. Cole; that the defendants answered in that action, claiming to be entitled to the possession of the goods; that on the 24th day of August, 1907, while said action was still pending, the plaintiff was made a party defendant thereto, and that after having obtained consent of the court on several different days he finally filed an answer and cross-petition in the replevin action on the 12th of November, 1907, and that thereafter on his own motion the plaintiff was dismissed out of that action. It appears by the record of the court in the replevin action before the goods were delivered to the plaintiff in that action they were appraised and a bond given, as required by law. This bond must have been in double the appraised value of the goods, because it was, as shown by the records of the court, given in accordance with the law, and such is the requirement of the-law, Revised Statutes, Section 5819, which reads:

“The sheriff shall deliver the property so taken to the plaintiff, his agent or attorney, after the expiration of five days from the time the property is taken, when there is executed by sufficient surety of- the plaintiff, a written undertaking to the defendant in at least double the value of the property taken,” etc.

This, however, whether the defendant in the replevin action claimed the ownership to the goods or the- right to possession only. 1 he situation then is this; that whether the defendants ivcív negligent 01 not in getting notice to the plaintiff of the pendency of the action in replevin, he received notice .in some wav in tira* so Unit he filed his answer and cross-petition and mi; hr thnc have maintained his rights and recovered his damages secured by the replevin bond, had he not. on his own motion. been dismissed from that action.

Y. hat wrong did the plaintiff suffer by reason of any failure r.f the defendants to give an earlier notice of the pendency of the replevin action? It is said in argument, that he was deprived of his light to give, a re-delivery bond and thereby recover the goods themselves. It does not appear jfrom any pleading that the plaintiff would - have given any such re-delivery bon,!, nor that the bond given in the replevin action was not adequate and the Sureties not sufficient to give him entire proteo! ion. Had he remained in the replevin case he could have bad a’! hi;; rights there adjudicated and have recovered whatever' damages lie sustained by reason of losing this property. TCe think there was a misconception on the part of those engaged in the trial of this case on the question of when the plaintiff war, entitled to notice in the replevin case. DoubtLess it ivas the duty of the defendants to exercise reasonable dibgen a' to gel notice lo him of the bringing of the replevin action, and in a proper case it would he for the jury to determine whether such promptness and care had been exercised by the defendant to give such notice. But if every substantial right of the plaintiff could have been protected in the replevin action after he had notice and after he became a party to the action, then he lost nothing by not. receiving an earlier notice. He couhl have recovered in that action exactly what he could recover in this action, to-wit. the damages he sustained by reason of his goods being taken from him. Under these facts the court should not have submitted to the. jury the question of whether the defendanla gave notice to tile plaintiff at the time the replevin action was brought, and the charge in so far as it submits that question to the jury is erroneous, because it was a matter of indifference when that notice reached the plaintiff provided it reached him, as it certainly did, in time for him to protect all his rights in the replevin action, and the result is the judgment is reversed and the cause remanded to the court of common pleas.


author: Marvin, J.; Winch, J., and Henry, J.,

text:
    SECRET PROFITS OF OFFICER. OF CORPORATION.
    Circuit Court of Cuyahoga County.
    John Beck v. Simon Fishel.
    Decided, June 7, 1909.

      Corporations — Duty of Officer to Malee Full Disclosure of Terms of Sale of Corporation Property — Stockholders’ Right to Share In Secret Profit of Officer.

    The president and general manager of a corporation induced all the stockholders to agree to a sale of all the corporation assets at a price which would net them 200 per cent, on their investment: when stating the proposition to them he also stated that he expected to make a good thing for himself over and above what the others made; it afterwards turned out that he received 1450 per cent, for his holdings and a contract on his part not to engage in the business for a term of years. Held: That Ms disclosure was not full enough to protect him in actions thereafter brought by one of the stockholders for an accounting, after discovery of the real price received for the property.

      Smith, Taft é Arber, for plaintiff.

      Max P. Goodman and White, Johnson, McCaslin <& Cannon, contra.
   Marvin, J.; Winch, J., and Henry, J.,

concur.

The plaintiff in this action seeks to have the defendant make an accounting o£ moneys received by him on the sale of certain stock in the Fishel Brewing Company, a corporation which was sold by the defendant for the plaintiff, and he seeks to recover whatever amount such accounting shall show as due to him from the defendant.

The facts are these: The Fishel Brewing Company was a corporation; it was organized in 1904, and began business June, 1905, and was sold out to the Cleveland & Sandusky Brewing Company after having done business about nineteen months. The paid up capital stock of this corporation was $221,000, of which the defendant owned $25,000, the remaining $196,000 being owned by other parties, $5,000 of which was owned by the plaintiff. The defendant was the president and general manager of this corporation. The plaintiff aside from owning stock had no connections with the corporation and no acquaintance with its business. The business for the time the corporation did business was exceedingly profitable; the net profits for the year 1906 on this capital of $221,000 was $85,000. The defendant at the annual meeting in January, 1907, made a report showing the financial situation of the company, and showing this net profit for the year 1906. The plaintiff was not present at the stockholders’ meeting at which this report was made, and had no actual knowledge of what the profits of the business were. On the 13th of February, 1907, the defendant sent notice, in writing, to the stockholders of this corporation requesting that they meet at the office of the company on the 15th of-February, at 2 o’clock in the afternoon, and that they bring their certificates of stock with them. The plaintiff and most of the stockholders responded to the call; the plaintiff took with him his certificate of stock, and was there introduced to Mr. Fishel, with whom up to that time he had no personal acquaintance. He was informed by Mr. Fishel that there was an opportunity to sell out the assets of the corporation for two hundred per cent, of the par value of the stock, and at the suggestion of Mr. Fishel, the plaintiff and most of the-other stockholders signed a writing which authorized Fishel to transfer this stock to the Cleveland & Sandusky Brewing Co. for 200 per cent, of its face value.

On the 22d of February, 1907, the defendant, pursuant to the authority given him by the stockholders, sold the entire assets, excepting only the cash of the company in the bank or in the hands of its treasurer, and the horse and buggy used personally by the president of the company, to the Cleveland & Sandusky Brewing Company. By the contract of sale the Fishel Brewing Company agreed to furnish contracts of Simon Fishel and his son, Theodore, Fishel, that each “will not at any time within ten years from the date of Iransfer. either directly or indirectly engage or be in any manner whatsoever interested, either as principal, or agent, or employe, or stockholder in the business of manufacturing or vending beer in or within the radius of 150 miles from the city of Cleveland, stale of Ohio, nor aid or assist anyone else to do so within said limit, except only as a stockholder of or employe of or with the consent in writing of the. Cleveland & Sandusky Browing Company, its successors and assigns.”

The contract further provided that the Fishel Company would procure and furnish “an agreement from Simon Fishel that lie will not for the period of ten years from the date of the acceptance hereof, sell any of his property which he may now own or which he may own during said period, without first giving a reasonable opportunity to the party of the second part to purchase 'the same from him on such terms as he would he willing to accept from any oilier party,-and secondly, that during said period he will not lease, for saloon purposes to any other party any property which he may now own or which he, may own during said period, without giving the-party of the second part, its nominees or assigns, a reasonable opportunity to lease said property from him on the same terms which he would accept from another party.”

The amount paid by the Cleveland & Sandusky Brewing Company wa's $850,000. Out of this amount the debts of the Fishel Company, which amounted to about $95,000, were to be paid, leaving after-the payment of debts about $775,000. Out of this amount, the defendant paid to the plaintiff and to the other stockholders (excepting himself) two hundred per cent. (200^) ■of the par value of their holdings. This required $892,000, still leaving in the hands of the, defendant the sum of $808,000, which was 1450(£ of the par value of his stock, whereas the oilier stockholders received but 200 0Í . -

It is urged that a part of this $808,000 was paid because of the agreement that neither the defendant nor his son would in any vise engage in file brewing business within 150 miles of Cleveland for the period of ten years.

The defiendan; was a man of large experience and superior attainments for the conducting of the brewing business, and without question the Cleveland & Sandusky Brewing Company was very desirous of putting an end to any competition on his part in íhe busines-s. and.they could well afford to pay a liberal amount to prevent such competition. They were also desirous of putting an end to the competition of the Fishel Brewing Company. The plant of this company was the best (Mr. Fishel sayo) oí its size in or about the city of Cleveland, and it had done so large a business as greatly to interfere with and lessen the business of the Cleveland & Sandusky Brewing Company. The fact that this company had such an excellent plant and that its competition was so prejudicial to the Cleveland & Sandusky Brewing Company was duo in great measure undoubtedly to the ability and experience of the defendant. The fact that its plant was of the very lies! wus because it was erected and equipped under the direction and management of the defendant, but to the extent that the Fish.el Company was a dangerous competitor and would justify the paying by the Cleveland & Sandusky Brewing Company a large price in excess of the physical value of the assets, 'vas the property of tlr- ?fishel Company, notwithstanding tbe fact that this business was due in great measure to the efforts of the defendant, for the defendant was' its employe, he was paid a salary of ‡6,000 a year to manage this business, and if ¡lio good will of the concern was enhanced in value because of Ills superior management, the company was entitled to tbe benefit of it; but to the extent that in the future it was desirable to so tie up Mr. Fishel ¡hat lie could not compete with the Cleveland & Sandusky Brewing Company, was a matter for which he alone would be entitled to be compensated.

It wrl be noticed, however, that in the contract of sale no special amount was fixed for this contract of Fishel to remain out of the business, except as ho should be employed by the Cleveland & Sandusky Brewing Company, so that it is left entirely uncertain as to what the last named company was to pay as a consideration for this refraining, on Fishel’s part, to engage in the business. If any attempt had been made to arrive at the value of this part of the contract it would seem as though the compensation which Fishel had theretofore received for his services would be taken as a basis upon which to make the computation. The highest salary which he had ever received, so far as appears from the evidence, he received from the Cleveland & Sandusky Brewing Company for the period of six years, ending in February, 1904. During that period he had acted as general manager of the Cleveland & Sandusky Brewing Company at a salary of $8,500 per year, and this at a time when the business was not interfered with or threatened by the. unfriendly legislation which Fishel says had already reduced and is is likely very greatly to reduce the sale of the product of breweries.

It would hardly seem that a greater amount would be taken into account in estimating the value of his services for the future, with all this legislation of which he speaks, interfering with the business, than the compensation which he received during the six years he was' with the Cleveland & Sandusky Brewing Company. Taking that as a' basis, it will be found that if $69,000 had been paid to him for this restriction on his employment, he could have taken out $8,500 as- pay for his first year, loaning the balance at 5 per cent, per annum, payable annually, and he could have received $8,500 at the beginning of each of the remaining nine years, so that under this estimate, if $69,000 had been allowed him as compensation for his keeping out of the brewery business, he might have done nothing and still have had as much as he could have earned at the largest salary that he had ever received and be paid each year in advance. If this amount had been taken out of the $363,000 there would still have been in his hands 1175 per cent, of the value of his stock, but he says that he communicated to the stockholders such facts as relieved him from accounting to them for all that was received for this property, and the facts in relation to such communication to the stockholders are these:

On the 15th day of February, after the plaintiff had signed the writing which he signed and to which attention has already been called, an informal meeting of the stockholders was held in a room at the brewery plant, at which Fishel made some remarks. This meeting was attended by the plaintiff. Whether he remained until its conclusion or not we do not determine, but he was there when Fishel made the statement, testified to by him, as appears on page 303 of the bill pf exceptions. That statement was:

“Gentlemen: The Cleveland & Sandusky Brewing Company is after us and want to buy us out. The Cleveland & Sandusky Brewing Company isn’t after the plant or after you to love you or me, they are after the trade and they want to get me and my son out of the way, and here is the option, and if we can get from them — they didn’t make any offer yet, and I did not neither — and if I can get what I made up my mind here — If I can get all the money back you put in, and if I can get the bonds, at the market price what it was on that date, 94%, and if I can get preferred stock at-74, and I wouldn’t take no common stock under no means, and then we make the deal. Besides that 1 must make a great big sum for myself and for my son. Tf I will get that, now will you be satisfied. ’ ’

/

lie says that after having said this he asked if there was any'body present who had anything to say against it, because if he had, he should say so then and the deal would be off, because he says he would not go a step further, and then he added, “if there is one man who has- the idea it should not be done, he should express himself and the deal will be off and we will be friends again.”

Nobody made any objection. All seemed to be well pleased that they were getting two hundred per cent, for their stock. One of them, a Mr. Ryan, stated in a loud voice so as to be heard by all, that he hoped that Fishel would make a million. He seems to have been extraordinarily well pleased, for he says that theretofore when he has held stock in a corporation, his dividends consisted in assessments on his stock, whereas- here he was getting 200 per cent, for his stock. It is perfectly manifest that all of the stockholders at that meeting were greatly rejoicing that the sale could be made at 200 per cent, and were willing that Fishel should make a good thing besides. At this meeting of the stockholders a. resolution, somewhat remarkable, was adopted. This resolution was introduced by Rax P. Goodman, the man through whom the transfer of the company from Fishel to the Cleveland & Sandusky Brewing Company was made. The last clause of this resolution reads: “Be it further resolved, that we admire the candour of our president in stating that if the sale were made he expected to receive a good return himself, irrespective of the proposition submitted to the stockholders.”

Unless it had occurred to somebody friendly to Fishel that it might he that when the stockholders came to learn that lie had received 1450 per cent, on his stock, while they had received lrat 200 per cent.,,or had received 1450 per cent, for his stock, including his contract worth at the outside not more than $69,000, not to compete with the Cleveland & Sandusky Company for ten years, that they would not feel that lie was especially entitled to thanks for his “candor” in stating that if the sale were made, he expected to receive a good return himself.

Nothing has thus far been said in reference to the restrictidii of the sale or lease of any real estate of Fishel. that is, giving the Cleveland & Sandusky Brewing Company an opportunity to purchase or lease on as good terms as he could got from anybody else, and the reason nothing was said about if is this was in nowise a restriction which could interfere with Fishel’s getting the highest price either upon lease or sale of any or all of his real estate.

That the law requires of an officer of a corporation the utmost good faith in dealing with his stockholders is recognized everywhere; he is a trustee for his stockholders, and as such is bound to communicate to them the facts which affect the value of their property, and in case of the sale of the property, the facts known to him which affect the price at which the property is sold. Ordinarily the officer of a corporation -is bound to account to his stockholders for the avails of any sale made by him, as any other trustee is bound to account to his beneficiary for the avails of sales made by him, and he is ex-rased, from paying over to bis stockholders each his aliquot part of the avails of the sale, when, ¡liter ful! and fair disclosure, the stockholder consents to the officer retaining part of such avails as compensation to himself. Boo Oliver v. Oliver, 119 Georgia, 362; Stewart v. Ferris, 66 L. R. A., 261; The New York & N. N. Railway Co. v. Hudson, 16 Beavan’s, 485; 3 Thompson on Corporations, Section 4024, and cases cited.

In Section 4025 of Thompson on Corpora lions, this language is used:

‘'The rule does not mean that a trustee is absolutely prohibited from making a proiit out o£ his trust relation. It means that he must not make a secret profit out of it. Ills duty is not to avoid wholly the doing anything for his own benefit, for the clac.-; of trustees we are considering, the directors of corporations, are generally inteiested in the subject-matter of the trust. TIis obligation to the benefiemries in'the trust is to make a full, fair and complete disclosure rf ail the circe on stances attending; any transaction which wit! bene‘fc himself in any matter different from the manner in which all ¡he shareholders will be benefitted. If the body of the ¡ha ¡('holders are made fully acquainted with the nature of the transaction, and agree to it, and agree that he shall have and retain the special benefit that may accrue from it, .then they will not be heard ofierwavdn to claim that this benefit shall he surrendered up to ¡hem as a proiit, which he ought not, in good conscience, to retain.”

In the ease of Bristol v. Scranton, 57 Red. Rep., 70, to which attention is called by counsel for the defendant, it appears that William W. and Waiter Scranton were brothers, that they were. 1he officers and managers of a corporation, that they sold the assets of that corporation to another corporation and at the same time each mitered into a contract for a large consideration that he would not competí1 with the purchaser in the business carried on by the purchasing corporation, and the court held that under the facts in that ease the stockholders of the sel'ing corporation were not entitled to have that which was paid to these individual men a:-; an inducement for them to refrain from competing with the business of the purchasing corporation. They reason that the amount paid to each was a fixed and certain amount; that it was not an unreasonable amount; that it was contained in a separate contract; that the stockholders of the selling corporation received not only all that their stock was worth, bnt all that the purchasing corporation paid for it. In the opinion this language is used on page 78:

“Undoubtedly the rule is that one acting in a representative or fiduciary capacity is not allowed so to deal with the subject-matter of his agency or trust as to benefit himself privately, and the agent or trustee who thus makes a profit out of his agency or trusteeship, must account for the same to his principal or cestui que trust; and it may be conceded that the rule applies, as a principle of public policy without regard to the actual fairness of the transaction, or the .merits of the service rendered or the price paid in case of a sale or purchase.”

The court then goes on to show that the amount paid to these two officers was paid to them upon the personal contract of each and was in no proper sense paid as a part of the purchase price of the selling corporation. Even in this ease the court says:

“It was unfortunate, and we think a mistake, that the Scrantons did not give the plaintiffs full information with respect to their individual contract before the stockholders meeting, but in our judgment they are not justly chargeable with intentional concealment. ’ ’

Under the facts and the decision in this last named case we do not feel that it aids the defendant in the present action. At the time of the meeting on the 15th day of February, Fishel did not know, he says, how much he would be able to obtain. At that time he did not understand that there was to be a contract which would prevent either him or his son from competing in the brewery business with the Cleveland & Sandusky Brewing Company. This we find from his testimony as to what occurred later, when he had a meeting with a committee of the Cleveland & Sandusky Brewing Company, at which meeting, for the first time, it was suggested that he would be asked to enter into a contract to refrain from engaging in the brewing business. He says he was surprised when this was proposed to him, and that he at once made up his mind that he must have more than he had before expected to demand.

We find that the statement made by Fishel to his stockholders after the plaintiff 'and many others had signed the contract authorizing the sale of their stock, that he would make a good thing .for himself besides obtaining 200 per cent, for them, falls a long way short of being a disclosure which would cause any of them to dream that he was to get either 1450 per cent, or 1175 per cent, for his stock, while they got but 200 per cent, for theirs.

The result is we find that the plaintiff is entitled to the accounting for which he prays. We have .not the exact figures upon which to make the accounting, but it can probably be made by counsel very readily, and when such accounting is had the plaintiff will be given a judgment for his proportionate share of the entire amount received on the sale of this property.


text:
    APPEAL PREMATURELY TAKEN.
    Circuit Court of Cuyahoga County.
    Samuel Pickersgill v. William J. Hunt et al.
    Decided, June 7, 1909.

      Appeal on Dismissal of Gross-Petitions Tending Equitable Defense — Issues — Tendered By Petitions Untried — Appeal Premature.

    Suit was brought upon a building contract and for extras; the defendant, by cross-petition, asked that the contract be reformed to include modifications of it claimed to have been made by the parties; hearing on the cross-petition was had to the court, before the issues made by the petition were tried to a jury and the court dismissed the cross-petition, whereupon, and before trial of issue tendered by the plaintiff, the defendant appealed. Held: As the judgment on the equitable cause of action set up in the cross-petition did not dispose of the entire case there was no final order and the appeal was prematurely tairen and must be dismissed.

      L. B. Ware, for plaintiff.

      Smith, Taft & After, contra.
   Marvin, J.; Winch, J., and Henry, J.,

concur.

The plaintiff sued the defendants, claiming to recover a balance due upon a building contract, and also to recover for certain extras which he claimed to have furnished for the building named in the contract, and he prayed to foreclose a mechanic’!? lien arpón the property described in the petition.

The defendants answered, denying some of the things, averred in the petition, and admitting some of them, and filed a cross-petition in which they aver that the contract sued upon, which was in writing, was subsequent to its being signed, modified in such wise as that some, if not all of the extras for which payment was claimed, in the petition, were to be included in the contract itself, and tin y prayed that the court modify the contract upon which suit was brought. This claim clearly raised a question to be tried by the court, whereas the other issues made in the case were triable to a jury. The court "heard the evidence, upon the matter of the modification of the contract, and refused to make the modification, and dismissed the cause of the defendant’s cross-petition. The language of the entry is:

'•'Feb. 10, 1Í)0Í). To Court: This caíase came on to be heard on the issues joined upon ihe first cause of action set forth in the cross-petition of the defendants, "William J. and Sarah Hunt, and the evidence, vra-,- nr- red by counsel and submitted to the court; and upon due eom-iderafion thereof, the court find in favor of the plaintiff and against said defendants on said first cause of action and ihe same is dismissed. And it is considered that said plaintiff recover of said defendants his costs made on said first cause of action. Judgment is rendered against said defendants for their costs thereto.”

From this .judgment the defendants, William J. and Sarah Hunt,, appealed to this court. Motion is made to dismiss that appeal. This motion is well taken. Our statute (Section 5236, Revised Statutes of Ohio), provides only for appeals (except in special proceedings) from a final order, and a final order is defined in Section {>707. Revised Statutes of Ohio, which reads:

“An order affecting a substantial right in an action, when such order in effect determines the action and prevents a judgment,, and an order affecting a substantial right made in a special proceeding or aipon nummary application in an action after judgment is a final order which may be vacated, modified or reversed, as provided in this title.”

!l is i rae ¡hnt this definiíimi of a final order is in the chapter relatin'', to proceedings i.i error. bu! .'he circuit court in the case of Williams v. Wynn 10 C. C. 427. treats it, and we think properly, as 'being tie* de udiion of a final order as well for appeals as in procoedinjni in error.

"UTo have examined idle ar.iboritios to which attention has been called by the appellate, buf are nimble to reach the conclusion reached by him. No think the appeal was prematurely taken. The case sliotild have beer. hied, and when it is tried an appeal can be taken. The, couri. will try the appeal and then being-bound by the determination of the questions submitted to the jury in the trial court, can modify its decree if it should find that a revision of the in bnmient should he made in such wise as to reach the proper result. 4Ye think the proper course is pointed out in the case of Buckner v. Mear, 26 O. S., 515. An examination of this cane indicates, and we think, clearly, that no appeal can he taken from the decision cu the equity branch of the case until the cane lias been finally disposed of in the common pleas. Of course where the determination of the' equity question determines the entire case, an appeal would forthwith be bad, because tbe ease so far as any trial of it could be had in the court of common pleas, is ended. But that is not this ease. Eero, the court held against the claim made by the defendants for equitable relief. The result is, as already indicated, that the appeal is dismissed.


text:
    PROSECUTION FOR. PROCURING A MISCARRIAGE.
    Circuit Court of Cuyahoga County.
    Norman M. Geer v. State of Ohio.
    Decided, June 14, 1909.

      Criminal Law — Abortion—Verclici Not Responsive to Indictment.

    A verdict finding the defendant “guilty of unlawfully, wilfully and knowingly using a certain instrument to procure a miscarriage as charged in the first count of the indictment” is not responsive to an indictment which charges the use of an instrument for the said purpose and that the result of- its use was a miscarriage, and no judgment can be entered upon such verdict.

      Walter D. Meals and Charles Selzer,-ioT plaintiff in error.

      J. A. Cline and E. Brudno, contra.
   Marvin, J.; Winch, J., and Henry, J.,

concur.

Geer was indicted upon two counts.

Upon trial lie was found “not guilty” as charged in the second count.

The first count charges the said Norman M. Geer at -Cuyahoga county, Ohio, with

' ‘ Unlawfully, wilfully and knowingly did use a certain instrument, the name of which instrument is to the grand jurors aforesaid, unknown, in and upon the body and womb of one Addie Sutter, she, the said Addie Sutter, being then and there a pregnant woman, with intent then and there and thereby to procure the miscarriage of the said Addie Sutter, said miscarriage not being then and there necessary to preserve the life of the said Addie Sutter, and then and there not having been advised by two physicians to be necessary for said purpose, and by means and in consequence of the said use of said instrument, but the said Norman Si. Geer then and there used with the intent aforesaid, the said Addie Sutter afterwards to-wit, on the 20th day of July, A. D. 1908, miscarried and was prematurely delivered of said child, contrary to the form of the statute in such case made and provided and against the peace and dignity of the state of Ohio.” .

The verdict of the jury as to this count reads:

‘' We, the jury in this, case, being duly impanelled and sworn do find the defendant guilty of unlawfully, wilfully and' knowingly using a certain instrument to procure a miscarriage as charged in the first count of the indictment. ’ ’

The sufficiency of this verdict was challenged by a motion on the part of Geer for a new trial and to vacate the judgment.

It will be noticed that on the trial, it was admitted that Addie Sutter the woman upon whom it is charged the instrument was used, had a miscarriage. It was not however admitted that such miscarriage resulted from the use of any instrument, so we need need not inquire whether, if such admission had been made, it would have affected the validity of this verdict.

No admission was here made which could in any wise affect it. It must stand or fall upon its sufficiency as it reads.

Exactly the same question was raised in this court in the case of this same plaintiff in error against the state, decided on the 12th of December, 1897, in which we found the verdict invalid.

The indictment in that case charged in due form the use of drugs with intent to procure a miscarriage which resulted in the death of the patient, or possibly with miscarriage as the result for the purposes of this case, it is immaterial which. The verdict returned reads:

“We the jury in this case do find the defendant guilty of unlawfully, wilfully, and knowingly administering certain noxious and poisonous drugs and medicines with intent to procure a miscarriage, as charged in the first.count of the indictment.”

Speaking for the court, Judge Caldwell said, in the opinion:

“The verdict was that he administered Ms drugs and medicines with the intent to commit an abortion, and no averment that it resulted in that, or that there was a result of death.
“This statute makes the intent no crime whatever, unless it results either in abortion or death, and hence it is clear that the verdict is not responsive to the indictment, and not responsive to the statute, and does not find the plaintiff in error guilty of any crime whatever.”

Xo authorities are cited in this opinion supporting the proposition made, but it is abundantly supported by the case of Riflemaker v. State, 25 Ohio St., 396; State v. Bludow, 15 Wis., 279. and 1 Bishop Criminal Procedure, Section 1005, and eases there cited. See also Florien v. State, 18th C. C., 596.

We reach the conclusion that the comb erred in overruling the motion to vacate the judgment, and grant a new trial, for the reason that the verdict, was not. responsive to the indictment and that wluit was found by the verdict was not a crime under the statute.


author: Marvin, J.; Winoii, J.. and Tíknry, J..

text:
    APPEAL BY COUNTY COMMISSIONERS.
    Circuit Court of Cuyahoga County.
    State of Ohio, ex rel Charles M. McClain, v. The County Commissioners of Coshocton County, Ohio, et al.
    Decided, July 19, 1909.

      Gou’.ilu Vennhiisslovera' Piiiht to Dismiss Appeal.

    Comity commiísioYK ru may dismiss the appeal of a case taken by them on appeal to tlio circuit court, notwithstanding the prosecuting attorney of the county is opposed’to such dismissal.
   Marvin, J.; Winoii, J.. and Tíknry, J..

concur.

This case, was brought by a tax-payer, who first applied to the prosecuting- attorney of the county to have it brought, who declined to bring it.

The relief sought is an injunction to prevent the defendants from issuing a series of bonds for the construction of a. 'bridge1, across the Muskingum river and the Ohio canal in the county of Coshocton. The result of the trial in the court of common pleas was the granting- of the injunction. Thereupon the defendants appealed the case to this court by proper proceedings. The ease being called for trial here, this peculiar situation presents itself. Counsel for the plaintiff wore ready to proceed with the case; the prosecuting attorney of the county-and other attorneys associated with him were ready to proceed with the case, and the case was fully heard in this court, but an attorney of this bar who has a right to appear as a friend of the court, if for no other purpose, brings to the attention of the court that on the — day of--, 19.09, the board of county commissioners adopted a resolution requesting that the appeal be dismissed. No formal motion is made by anybody in this court to dismiss the appeal. It is said in argument that there is no proper evidence before the court that the resolution spoken of was ever passed by the board of commissioners, but this is a mistake. It is true that an affidavit is filed showing the passage of the resolution, and it is further true that upon the hearing, all of the records of the board of commissioners, in reference to the construction of the bridge mentioned, were admitted in evidence, so that the court is not dependent upon the affidavit alone referred to, but has a record itself which shows the adoption of the resolution, and we are confronted with the question of whether, in view of this resolution, the court should dismiss the appeal.

It is conceded that if the board represented only itself, were acting for itself alone, the appeal should be dismissed, or in any event that the court would be authorized to dismiss the appeal. The circuit court of the eighth circuit on the 16th day of December, 1907, held in the case of Albert Menjou v. Local No. 106, Hotel & Restaurant Employes, that a party who had appealed might dismiss his appeal where the rights of others were not thereby prejudiced, and as has already been said, no serious objection has been made against that proposition.

But, it is said, that the board of commissioners acting in a representative capacity, and only as- trustees of the public, to permit them to dismiss this appeal, in view of the fact which is shown in the evidence of the case that at an election at which the question of the construction of the bridge, to pay for which the bonds were to have been issued received a majority of votes in favor of the construction of the bridge, would be violating their trust and sacrificing the rights of the public, who had voted as above indicated. Tf the board of commissioners are to be, considered as trustees in the sense that they have no other interest in the case and no other rights in the case than a guardian would have in a suit brought on behalf of his ward or an ordinary trustee on behalf of his cestui que trust, this proposition would be sound.

Authorities cited by counsel opposing the dismissal of this appeal support the proposition. These authorities are largely found in Vol. (>, page 853, of. the Encyclopedia of Pleading and Practice. The text supported by these authorities reads:

“A trustee or nominal plaintiff can not voluntarily terminate his cause without the consent of the real party in interest; and where he dismisses without or against the consent of his cestui que trust, the case will he reinstated on motion or by mandamus.”

Among the authorities cited in support of this text is the case of Thomas v. Thomas, 3 Litt. (Ky.), 9, where this language is used:

“There may be cases where it might be, improper to permit those in whose names a suit is prosecuted to dismiss it; as for example, where the suit is brought for the benefit of another, and the person claiming the beneficial interest is proved to have the equitable right, in the exercise of its discretionary powers over litigants, permit the nomina] plaintiff to defeat a recovery.”

We are of opinion that the board of county commissioners is such a party to this case as that it may do what a natural person could for himself do in the matter of dismissing an action, or dismissing an appeal.

By Section 845 of the Revised Statutes of Ohio, it is provided that:

‘ The board of county commissioners shall be capable of suing and being sued, pleading and being impleaded in any court of judicature, and of bringing, maintaining, and defending all suits, either in law or in equity, involving an injury to any public, state or county road, bridge or ditch,” etc.

If the board may bring suits it must bring such suits, when in the exercise of its discretion it deems it best for the county that the suit should be brought, so too in the. matter of the defending of any suits brought against the county, and this necessarily implies on the part of -the board, authority to compromise and adjust claims to settle suits, and to dismiss suits, when in the judgment of the board such should be pursued. Certainly their authority in this matter can not be less than the authority of the officers of a business corporation. Such officers are, in a sense, trustees for the stockholders of the corporation, but it has never been doubted, that acting in good faith, such officers might dismiss the suits brought by them for and on behalf of their corporation, and this because the corporation can only act through its proper officers, and in a matter of litigation the board of county commissioners constitutes such officers.

In the ease of State v. Moriarity, 20 Ia., 595, it is held that an appeal taken by the state may be dismissed by the state, as any other party may dismiss his appeal, unless it appear that the appellee will be prejudiced.

Here there is no complaint by the appellee that he will be prejudiced by the dismissal of the appeal, and we have the extraordinary situation of both appellant and appellee being content that the appeal should be dismissed and the case stand upon the judgment appealed from, and somebody else, not representing the public, objecting to such dismissal.

It is true that the prosecuting attorney for the county is made by law the legal advisor of the board of county commissioners, and it is made his duty to prosecute and defend suits for the county, and certain suits may be brought by him on his own initiative, but generally his action, so far as prosecuting and defending suits is concerned is directed by the commissoners. It is certainly no part of his duty to direct the commissioners as to the policy to be pursued by them in any business transaction. It is his duty to advise them of what their legal rights and duties are as a board of commissioners; having done this, it is for the commissioners to determine the policy they will pursue in the matter of bringing or defending actions or settling actions already brought.

We reach the conclusion that nobody’s rights will be prejudiced by dismissing this appeal pursuant to the resolution of the commissioners requesting that it be dismissed, and an order will be entered accordingly.


author: Marvjn. J,; Winch, J., and TIbnry, J.,

text:
    HEARING BEFORE MAYOR. UNDER LOCAL OPTION LAW.
    Circuit Court of Cuyahoga County.
    In the Matter of the Hearing, etc., Before Hon. Tom L. Johnson, Mayor.
    Decided, November 1, 1909.

      Liquor Laws — Wet and Dry Petitions May Be Remanded for Searing by Mayor — No Further Notice Required — Forty Day Limitation for Searing Directory Only.

    1. When an order made by a mayor on a hearing on a wet and,dry petition has been reversed by the circuit court for irregularity in making the order, the petition may be remanded and may be heard by the mayor.
    2. In such case the mayor is not required to publish further notice of hearings to be had on such petition.
    3. The provision of law that such petitions shall be heard in not more than forty days after they are filed with the mayor is directory only.

      Bentley & Arnos, for plaintiff.

      Shaw, Sawyer <& Shaw, contra.
   Marvjn. J,; Winch, J., and TIbnry, J.,

concur.

This ease is before ns on motion for leave to file a petition in error to a finding of Tom L. Johnson, mayor of Cleveland, on a petition filed with him under the statute found in the 98th volume of Ohio Laws, at page 68, et seq. This statute provides that after two years from the time when it has been found, by proper proceeding, that the sale of intoxicating liquors within a certain residence district is unlawful, a majority of the qualified electors may file a petition with the mayor against the prohibition of the sale of intoxicating liquors as a beverage within sueb district. By an amendment to this act found in the- 99th O. L., at pages 52 and 58, it is provided that the filing of such petition as has already been mentioned, shall not prevent the filing of a petition for the prohibition of the. salt; of intoxicating liquors within such district, and it further provides-.that when two are filed, that which has the signatures of the greatest -numbers of electors shall be granted, and that the territory containing the greatest number of resident electors shall have precedence in the hearing.

By proper proceedings i-t had been found that in a certain district in the city of Cleveland the sale of intoxicating liquors should be prohibited. After more than two years thereafter, certain electors did file a petition against such prohibition. This was done on the 4th day of February. 1909, and the petition was numbered 38. As required by the statute the mayor fixed the time for the hearing of this petition on the lltb of February, 1909. Before the 11th of February, a petition was filed witli the mayor by Richard Newton and others, ashing for prohibition in this district, and this was numbered 39. The hearing of petition No. 38 was continued from the 11th of February to the 23d, and from then to the 24th of February. Notice of the filing of this petition No. 38, and of the time of its hearing was given in the newspapers, as provided by law. On the 24th day of February the vice-mayor heard the petition No. 38, No. 39 being then pending, but not yet heard. The vice-mayor on the hearing on the 24th of February held petition No. 38 sufficient, and an order to that effect was made. Error was prosecuted in this‘court to this finding and the judgment already made under it was reversed. It was not in terms ordered by the court upon such reversal that the case be remanded to the mayor for further proceedings, but in the announcement by the court of the reversal, it was so ordered.

The grounds upon which the reversal was placed were that the vice-mayor had no jurisdiction, and that No. 38 could not be lawfully heard until No. 39 had been heard. Thereafter, the mayor heard No. 39 and found it insufficient, and then on the 21st of July, 1909, he set No. 38 for hearing on the 30th of July, and on that day heard it, and found it sufficient, and a petition in error is presented to us with a motion that it may be allowed to be filed. If error was committed by the mayor and that error is manifest on the record this motion should prevail and we should allow the petition to be filed, but we have reached the conclusion that there is nothing set out in the petition in error which would justify a reversal of the order made by the mayor.

It it said that the mayor lost all control of petition No. 38 when this court reversed the order made by the vice-mayor on that petition, because it is provided by the statute that the circuit court shall have final jurisdiction in the matter. It is manifest that the circuit court by finding that the petition had been prematurely heard, even if heard by the right party, did not undertake to pass upon the merits of the petition; certainly when this court found that the hearing by the vice-mayor was a nullity it did not finally determine whether it should have been granted or not have been granted when heard by the proper officer, so that it is clear that this petition No. 38 was still before the mayor for hearing after the action of the circuit court. Before the mayor undertook to hear No. 38, No. 39 was out of the way, so that the objection as to precedence was gone. As to the matter of notice, the mayor had given the notice required by law for the original hearing. There was no authority under the statute to give another notice. As a matter of fact, however, Richard Newton, who prosecutes this proceeding in error, had actual notice of the time of the hearing, because he was present at the hearing, as appears by the record.

A further claim is made that as the mayor was without jurisdition to hear this petition because more than forty days had elapsed from the time of its filing before such hearing was had, and this is based upon the language of the statute which is that:

‘ ‘ Such mayor # # * shall cause a certified copy or certificate of his findings- together with the original petition to be filed with the clerk of the municipal corporation or counsel in not less than five days after such findings and not more than forty days from the filing of the petition with the mayor.”

There can be no doubt that this language is directory and not mandatory. To hold otherwise would put every petition filed by either those desiring to prohibit or those desiring to prevent prohibition in peril, because if the mayor were unable to hear the petition within the time directed by reason of his health, by reason of other duties, or for any other reason that would prevent his hearing- the same, the petition was absolutely good for naught.

This clearly was not intended, and we reach the conclusion that this petition in error ought not to be filed, because upon an examination of the case, if it were permitted to be filed, we should be required to affirm the action of the mayor.


author: Marvin. J,; Winci-t, J., and Henry, J.,

text:
    PROSECUTION FOR. ABORTION.
    Circuit Court of Cuyahoga County.
    Norman M. Geer v. State of Ohio.
    Decided, November 1, 1909.

      Abortion — Acquittal on One Count Not a Bar to Second Trial Therein After Reversal of Conviction on Other Count — Reasonable Dotibt Defined — Jury Charged to Reason Together.

    1. When an accused has been tried for abortion charged in two counts and found .guilty upon one and not guilty upon the other, upon his second trial after reversal of the first judgment, it is not error to admit evidence as to his guilt under the charge as to which he was found not guilty at the first trial.
    2. In defining reasonable doubt it is not error to charge the jury that if they would act upon such evidence in the most important affairs of their lives, then it is safe to say that they have been convinced beyond a reasonable doubt.
    3. It is not error to refuse to charge that each juror should continue to vote for acquittal, without fear, so long as he, is not convicted beyond a reasonable doubt, but to charge them that they should reason together upon the evidence.

      G. L. Selzer and -(?. M. Anderson, for plaintiff.

      John A. GUne, contra.
   Marvin. J,; Winci-t, J., and Henry, J.,

concur.

Tire plaintiff was indicted under Section 6815 of the Revised Statutes with the crime of having committed abortion upon the person of one Addie Sutter, on about the 15th of July, .1908. The indictment was in two counts, the first charging-that the offense was committed by the use of an instrument (naming it) and the second charging that the offense was committed by the administration of drugs and medicines. The jury returned a verdict as charged in the first count of the indictment and not guilty as charged in the second count. Judgment was entered upon this verdict. Upon proceedings in' error prosecuted in this court that judgment ivas reversed and the case remanded to the court of common pleas for a new trial. Such a new trial was had and the jury again returned a verdict of guilty under the first count and not guilty under the second count, and judgment was entered upon the verdict. The motion for a new trial made by Geer was overruled, and proceedings in error are prosecuted here to reverse that judgment. It is urged on the part of the plaintiff in error that the court erred in admitting evidence tending to establish the guilt of Geer under the second count of the indictment because it is said that the jury having found him not guilty under this count on the former trial, the question of his guilt or innocence under this count is res adjudícala. This contention is not sound.

The offense of abortion is defined in one section only, and the manner of procuring abortion all set out in that one section and the cáse comes, as wo think, clearly within the case of Jarvis v. State, 19 Ohio St., 585. In that ease Jarvis was indicted for manslaughter. The indictment contained three counts; the first charged that the crime was committed by throwing a glass tumbler against the head of the deceased; the second charged that the crime was committed by striking the head of the deceased with a tumbler in the hand of the accused, and the third count charged that the crime was committed by striking the head of the deceased with the fist of the accused. On the first trial, the jury found the accused guilty as charged in the third count, and not guilty as charged in the first and second counts. The judgment was reversed and a second trial was had, resulting in a verdict of guilty as charged in the first count, and not guilty as charged in the second and third counts. Judgment was entered upon this verdict and the court upheld the judgment, the court saying this ease was controlled by the case of Lesslie v. State, 18 Ohio St., 391. The first paragraph of the syllabus in that case reads:

“Where an indictment is for but one offense, though charged in several counts, in different ways, and the defendant is convicted upon some of the counts and acquitted upon others, the granting of a new trial upon his motion opens the case for retrial upon the counts on which he was acquitted as well as those for which he was convicted. ’ ’

The same doctrine is stated in Bishop’s Criminal Law¡ Section 998 (8th Edition), which reads:

“Wherever a verdict is rendered and the defendant for any cause moves in arrest of judgment or applies to the court to vacate the judgment already entered, he will be presumed to waive any objection to being put a second time in jeopardy; therefore, ordinarily, he may be tried anew.”

It is further urged that the court erred in admitting a catherter in evidence. Before this eatherter was offered in evidence it was shown to have been found in the room of Addie Sutter shortly after the offense is said to have been committed. It was shown by the testimony of Dr. Spencer that this instrument is one which could be and sometimes is used for the purpose of procuring an abortion. It is also used for other purposes. This was, properly admitted in evidence, for the same reason that if a person were found to be cut or slashed with a knife, and a knife was found shortly after the cutting or slashing in the room where it is charged the cutting or slashing took place, such knife might properly be admitted in evidence.

Again it is urged that there was error on the part of the court in the charge to the jury. One of the complaints made to the charge to the jury is that the court said, if the jury found the accused guilty of having procured an abortion by the use of drugs, the. verdict should be guilty under the second, count in the indictment. What lias already been said shows that there was no error in submitting this question to the jury.

But, it is urged, the court erred in the definition of what constitutes reasonable doubt. It is not claimed that thfere was-not a proper definition of reasonable doubt given, but that in elaborating on this definition the court erred in using this language :

“After applying the same reason and judgment which yon would apply to the most important events of your life to the evidence offered in any ease, if you feel you are satisfied beyond a reasonable doubt, to a reasonable certainty, so that you would act upon such facts in your own important affairs of life, then it is safe to say'that you haye been convinced beyond a reasonable doubt. If you would act upon the proof in the most important affairs of your own life, then it would be safe for you to say that the proof has not excluded from your minds a reasonable doubt. Of course, if there is circumstantial evidence, that is, circumstances are to be depended upon to convict of crime, or to prove any fact, it is essential that the circumstances should all look towards the establishment of guilt and be inconsistent with any other inference. So that the circumstances, all- taken together, should be consistent with the inferences of guilt, and not consistent with any other inference,”

There was no error in any part of this language of the court. Taken together and in connection with what had been said before this in the charge, it was an admirable statement of the rule which should govern the jury in determining whether a reasonable doubt of the guilt of thé accused existed. In argument, it was said that what might be a very important and perhaps the most important affair in the life of one of the jurors, might not be thought by another juror to be the most important affair in his life. This is true, and for the very reason that this is true, the language was well calculated to convey to each juror what should constitute a reasonable doubt, or what should convince beyond a reasonable doubt, because under this charge each juror was called upon to apply to himself what to him was the most important affair in his life and say whether in relation to such affair, he would act upon this evidence. It is further urged that the court erred in refusing to give the sixth request made by the counsel for the accused. That request reads:

“The defendant is entitled to the consideration and judgment of every member of the jury on the question of whether or not .he is guilty as charged in the indictment; and if any member of the jury is not convinced beyond the existence of a reasonable doubt of the guilt of the defendant as charged in the indictment, it is his duty to vote for the acquittal of the defendant and to continue so to do. without fear, so long as he is not Convinced beyond the existence of a reasonable doubt that-the defendant is guilty as charged in either or both of the counts of the indictment.”

In reference to this the court said:

“No. 6 is refused in the language in which it is requested, on the ground that it is misleading. I will say, gentlemen, however, that the defendant is entitled to the consideration and judgment of every member of the jury on the question of his guilt. Tt is your duty as jurors to consider the evidence as a jury, with the sole end in view of the ascertainment of the question which you are called upon to determine. It is your duty to reason together upon the evidence. It is the duty of each one of you to apply your best reason and judgment, and your best conscience to the evidence, in order that you may discharge the obligation which you.have assumed under your oath.”

This language of the court was eminently proper and required of each juror all that the law requires of him, and while the request as made might have been given without error, still as said by the court it might have been misleading. A juror might have felt that he must not listen to or in any wise be influenced by the arguments of his fellow jurors, and if a-juror had so understood the instruction he would have felt called upon to do that which the law does not call upon him to do. It is proper that the jury should discuss with one another the evidence, and the effect which the evidence should have upon the mind, and when all this has been done, then of course each juror must act upon his own conscientious conviction. There was no error in refusing to give the sixth request, when such refusal was accompanied by the language used by the court to the jury.

It is further urged that the verdict was not sustained by sufficient evidence, that is, by evidence which should have convinced the jury beyond a reasonable doubt of the guilt of the accused. This contention is not sound. Dr. Burke testified that when he saw Addie Sutter in the hospital, shortly after the offense is charged as having been committed, to the best of his judgment she was suffering from having had an abortion produced upon her. His examination, it is urged, was not as complete as it should have been, to warrant this opinion. The evidence shows that Dr. Burke is a medical man of extensive experience. He held the office of coroner of this county, and his opinion was entitled to great weight with the jury. • Dr. Davis, who saw Addie Sutter while she was in the hospital shortly after this offense is said 'to have been committed, says that from his examination she was suffering from the effects of an abortion, produced by an instrument. Emma Martin testifies that on Friday, the 17th of July, 1908, she moved into certain rooms in the same building in which Addie Sutter had her living rooms, at which time she saw Addie Sutter apparently well; that on Sunday, the 19th of July, she (Addie Sutter) was in bed not able to get out and sent for a doctor, or rather had Mrs. Martin call a doctor by telephone. Addie Sutter did not give her the name of the doctor to be called, but gave her a telephone number. Ten minutes afterwards Dr. Geer appeared. Mrs. Martin asked him if he was the doctor, and he answered he was, and without her showing him where Addie Sutter’s room was or telling him that it was Addie Sutter who wanted him, he went directly to her room. After he had been there some time Mrs. Martin rapped at the door, when the man- inside, manifestly Dr. Geer, told her to wait for a few minutes, not-to come in then. She did not see the doctor leave, but later she went into the room where she found Addie Sutter jn bed and unable to get up.

On the 20th of July L. G. Corlett, a police officer, and others, went to the rooms of Dr. Geer, and there found a foetus wrapped in a newspaper; the newspaper being considerably burned and the foetus burned to some extent. Newspapers were being pulled out of the stove when Corlett went in. Among the newspapers wrapped about this foetus or found there in connection with the same was one out of which a part of a column of the same had been cut; the missing part of that paper was found in Addie Sutter’s room. The day-book of Mr. Geer was introduced in evidence. In this book, under date of July 15th, 1908, is- found an entry reading “Mrs. Sutter — 1539 Chestnut,” and then follows some hieroglyphics the meaning of which is unknown to us. But that this indicates that Dr. Geer had in some way come into relations with Addie Sutter at this time is clear. That the Mrs. Sutter named in the book is Addie Sutter, is manifest from the fact that the number on Chestnut street appearing in this entry, is the place where Addie Sutter was then living. We are not surprised that the jury should have comento the conclusion, beyond a reasonable doubt, that the foetus which was found at Dr. Geer’s office wras taken from Addie Sutter; that this foetus was induced to be discharged from the body of Addie Sutter by an instrument; that the instrument which was found in her room just afterward was- suitable for the purpose, and was the one used, and that Dr. Geer having been there with her on Sunday, the 19th of July, 1908, was the person who used this instrument upon her. *

The verdict was abundantly sustained by the evidence and the judgment of the court of common pleas is affirmed.


author: Marvin, J.; Winci-i, J., and Henry, J.,

text:
    DESCENT OF PROPERTY THROUGH DECEASED WIFE.
    Circuit Court of Cuyahoga County.
    Henry C. Holmden et al v. Elizabeth J. Craig.

    Decided, November 1, 1909.

      Will — Intestacy as to Part of Estate.

    1. A wife without children died leaving a will whereby she devised the income of her real estate for five years to her husband and provided that at the end of the five years said real estate should become his in absolute ownership; the husband died within the five years. Held: Said real estate descended to the heirs of the husband.
    2. One may leave a will and yet die intestate as to part of his property.

      U. H. Johnson, for plaintiffs in error.

      Smith, Taft & Arter, contra.

       Affirmed without opinion, Holmden v. Craig, 83 Ohio State, 483.

   Marvin, J.; Winci-i, J., and Henry, J.,

concur.

Suit was brought in the court below by Elizabeth J. Craig against the several plaintiffs in error here, alleging that the plaintiff (plaintiff below) is the owner of certain real estate described, and that defendants (plaintiffs in error) each claim to have an interest in the premises adverse to the estate of the plaintiff. The prayer of- the petition is to have the title of the plaintiff quieted as against any claim of any of the defendants. The defendants by their third amended answer set out these facts: that one Mary H. Craig was, in her lifetime, seized in fee simple of the premises described in the petition, and being so seized she died; that she was then the wife of one W. E. Craig; that she left no issue of her body; that prior to her death she executed a last will and testament, which was duly admitted to probate. Among the provisions of said will were the following:

‘' Item 2. I give and bequeath to my said husband W. E. Craig all my personal property of whatever description and wherever the same may be.
“Item 3. I give and bequeath to my said husband W. E. Craig, the-use of and all rents collected of any and all my real property, wherever the same may be for- a period of five years from the date of my death.
‘ ‘ Item 4. I give, devise and bequeath to my said' husband W. E. Craig, all my real property wherever the same may be, however, not to become his in absolute ownership until five years from the date of my death. ’ ’

The said Mary IT. Craig died on the 2d day of December, 1903, and the said AAr. E. Craig died on the 12th day of May, 1908.

The defendants below, plaintiffs in error, are the brothers and sisters of the said Mary IT. Craig.

The said AAr. E. Craig left a last will and testament which was duly admitted to probate after his death, in which he in terms devised the real estate described in the petition to the defendant in error, so that whatever title W. E. Craig had to these premises at the time of his death is now in the defendant in error.

It is urged on behalf of the plaintiffs in error that A¥. 'E. Craig had no estate in these premises except such as he got by virtue of the provisions of the will of the said Mary H. Craig, and that since by her will it was provided that said premises were “not to become his in absolute ownership until five years from the date of my death” and that since he died within five years from the death of his wife, the premises never were his, and that therefore any attempt on his part to dispose of the same by will must go for naught, and that since with the husband’s rights out of the way, the. plaintiffs in error are, as the heirs at law of the said Mary IT. Craig, the owners of the premises by inheritance from her.

The plaintiffs in error claim, as appears by brief of counsel filed in the case, to inherit under Section 4158 of the Revised Statutes. This section provides for the order of descent as follows :

“When a person dies intestate, having title or right to any real estate or inheritance in this state, which title came to such intestate by descent, devise, or deed of title or gift from an ancestor.” etc.

It will be noticed that this section applies only to-such real estate as came to the intestate by descent, devise or deed of gift from an ancestor. There is no allegation in this answer that the premises came to Mary IT. Craig by descent, devise or deed of gift from anybody. In her, so far as appears, this estate was not ancestral, and will therefore be presumed to have come to her by purchase, in any event not by descent, devise or deed of gift from an ancestor, so that there is nothing in the facts alleged in this answer to bring the descent within the provisions of this section, for these plaintiffs in error, if they had any title derived by inheritance from the said Mary IT. Craig, must stand upon their rights as heirs of one who died seized of real estate which came by purchase, that is to say, not by descent, devise or deed of gift from an ancestor. Descent of sucR lands is provided for in Section 4159 of the Revised Statutes. This section provides for the descent of lands of one dying intestate, and names as heirs:

“First. To the children of the intestate or their legal representatives.
“Second. If there are no children, or their legal representatives, the estate shall pass to and be vested in the husband or wife, relict of such intestate.
“Third. If such intestate leaves no husband or wife, relict to himself or herself, the estate shall pass to the brothers and sisters of the intestate of the whole blood, and their legal representatives. ’ ’

It is then only upon the hypothesis that as to whatever estate there was in these lands, other than the right of the husband to the use and rents thereof for the period of five years after the death of Mary IT. Craig, she died intestate.

It is urged on behalf of the plaintiffs in error that this- section does not apply, because Mary IT. Craig left a will, and therefore did not die intestate, and that being so, the husband’s rights are not such as they would have been had she- died intestate. But this reasoning applies as well to them as to the husband. It is only when the owner of lands dies intestate that either becomes the heir under this section of the statute. The definition of the word intestate, as given in Anderson’s Law Dictionary, is: “Without a will; the status of a person who died without having disposed of his property by means of will, and the condition in which the property itself stands before the law; as intestate estate. ’ ’

Under this definition it may be said that Mary IT. Craig did not die intestate because she left a valid will, but by this will she made no disposition of these premises except an estate in her husband for five years, unless it be held that the husband became the absolute owner by virtue of the will. It is not necessary to determine this question as we view the case, because, if the husband did not become the owner by virtue of the will, then, as to these premises (subject to his five year’s rights), she died intestate. And to the extent that she died intestate under the provision of this last quoted section of the statute, the premises descended to and became vested in the husband as her heir. The word heir being used in the sense that it means those entitled to the estate by inheritance, because it is the husband who comes first as inheritor, before the brothers and sisters of the intestate, so that the husband, relict, became either the absolute owner of these premises by the terms of the will, or he became the absolute owner by virtue of his inheritance under Section 4159.

We are cited to the ease-of Blackman v. Wadsworth, decided by the Supreme Court of Iowa, and reported in the 21 Northwestern, at 190, the second clause of the syllabus of which reads:

“A widow is not an ‘heir’ to her deceased husband, and as such entitled to a lapsed legacy under the provision of Code, 2337.”

Without further going into an examination of this case attention is called to the ease of Weston v. Weston, 38 Ohio St., 473, where it is said in express terms that under the circumstances of that case the widow of the testator succeeded to the property under the will as heir at law of the testator.

Whoever, by virtue of law, succeeds to the rights of an intestate in real property, is heir of such intestate, so that a husband upon whom the title to real estate is cast by the death of the intestate, is properly spoken of as the heir of the intestate. However, it is a matter of indifference whether the word heir be the proper term to apply to him who inherits. The section of the statute referred to does provide that under certain circumstances the husband shall become the owner of real estate Left by the deceased wife, and in this case, the only argument used against the right of the husband in this property is equally fatal to any claim on the part of the plaintiffs in error, because their rights as well as the rights of those claiming under the deceased husband, are dependent upon the statute which provides for the descent of real estate from one who dies intestate.

That one may die intestate as to certain property and not intestate as to all, is recognized by numerous authorities. Indeed, it seems too plain for argument.

In the case of Bane v. Wick, 19th Ohio Reports, page 328, the court had under consideration a will in which the testator bequeathed certain property. On the one hand it was claimed that the will disposed of his entire estate; on the other that it disposed of part of. his entire estate only; Judge Spalding announcing the decision of ,the court, begins with these words:

“The only question raised by the pleadings for our consideration, is bilis: Did Henry Wick, by his ]ast will and testament, dispose of his entire estate? If he did, there is an end of the case, for no one has doubted his right, under all the circumstances, to make a full testamentary disposition of his property. If he did not, then, under the statute of ‘descent and distribution,’ the complainants, as the legal representatives of Matilda Bane, will take the one-eighth part of such intestate estate.” Here recognizing that though one dies leaving a will, he may leave an intestate estate.

In the case of Gillen et al v. Kimball et al, 34 Ohio St., 352, it is clearly recognized that one may die leaving a will and still die intestate as to some part of the property.

In Gilpin v. Williams et al, 17 Ohio St., 397, the second clause of the syllabus reads:

“Where a testator devises to his ‘daughter E, during her natural life, and to her children after her death forever,’ one-eighth part of his real estate, and there is no provision in the will .in respect to a disposition of the remainder in ease E shall die without having had issue, and there is nothing in the will showing a contract intention on the part of the testator, E takes a life estate only; although, on the death of E without having had issue, the testator will have died intestate as to the contingent reversion of her share, and the same will revert to his heirs general.”

And there are numerous other authorities to the same proposition that one may die leaving a will and still die intestate as to part of his property.

In the case of Doyle v. Doyle, 50 Ohio St., 330, a husband died leaving a will which was duly admitted to probate, and'leaving a widow. No mention was made in the will in any wise of the wife, who, at his death became his widow. ' She brought suit for dower and a distributive portion of the personal estate. It was urged against her claim that she was not' entitled to any dower or distributive portion of it, because she did not come within any of the provisions of the statute entitling her thereto. The provisions being that where a husband dies intestate, his widow shall be entitled to dower and a distributive portion of his personal estate. And the only other provision in reference to the question, is that where any person shall die leaving a widow, and leaving a last will in which some provision is made for such widow, she shall have her election whether to accept the provisions of the will or to take dower and a distributive portion of the personal estate.”

Clearly Mrs. I)oyle came under neither of these provisions and yet the court say, in the last sentence of the syllabus: “As to her in such case, he is regarded as dying intestate.1 ’

So that it is recognized by the courts that one may die testate as to a part of his property, and intestate as to the balance, and he may be testate as to certain persons and intestate as to others. For here it is said, that Doyle died intestate as to his wife.

In Baker v. Baker, 51 Ohio St., 217, a will is defined to be a disposition of property to take effect after death.

In Crane v. Doty, 1 Ohio St., 279, a will is defined to be “an instrument by which a person makes a disposition of his property, to take effect after his decease.”

In Bailey v. Bailey, 8 Ohio, 238, this language is used:

“What is a will? In Ohio, it is an instrument in writing signed by the party making the same, or by some other person in his or her presence, and by his or her express direction, attested and subscribed by two or more credible witnesses, and by which the party executing the same, makes a disposition of his or her property, to take effect after his or her death.”

Of course, this last definition would exclude non-cupative wills, but the will under consideration in this case, not being such, these definitions which are practically alike, may be taken as the true definition of a will.

It has been defined as the means whereby one may dispose of his property,‘to take effect at his death. Indeed all definitions of a will include the idea that it is a means of disposing of property, to take effect at the death of the testator. We must bear in mind that a will always disposes of property. It is clear, therefore, that a written instrument in the form of a will which makes no disposition of property is. not a will. To illustrate: If one were to provide in a writing executed in conformity with the law iii relation to the execution of wills, in which the only provision made is in these words, “I will and direct that my son John shall receive no part of my estate at my death,” it would seem clear that this instrument was not a will. It disposes of nothing. It leaves all the property of the deceased undisposed of, and so the party executing such an instrument would die intestate. See Crane v. Doty, 1 Ohio St., 279.

And to the extent that one dies leaving property undisposed of by will, he may properly be said to have died intestate, and it is clearly in this sense that the word “intestate” is used in the statute, and the statute is to be construed to mean as though it read:

When any person shall die leaving no will by which his real estate is disposed of, the same shall descend and pass as follows.

Suppose Mary IT. Craig had by her will bequeathed to John Doe the sum of one hundred dollars and had made no other disposition of any property, it could not, with any sort of propriety, be said that her real estate would not descend to these persons named in the statute as entitled to the inheritance where one dies intestate.

The result of this reasoning is that we hold that W. E. Craig was the owner of these premises at the time of his death, and that the defendant in error is, by virtue of his will, the owner, as against any claim of any of the plaintiffs in error, and the judgment of the court of common pleas is affirmed.