author: MARVIN, J.

text:
    CONTRACTS
    [Cuyahoga (8th) Circuit Court,
    November 10, 1912.]
    Cyrus Locher v. F. H. Haserot et al.
    1. In Public Contracts Awarded to Lowest Bidder Sample Need not Conform to Specifications.
    When a public contract is let to the lowest bidder and the specifications on file are made a part of the contract, it is immaterial that a sample submitted does not conform to specifications.

      2. Awarding Contract to Lowest Bidder does not Permit Acceptance According to More Expensive of Two Samples Submitted.
    Where a statute governing the awarding of a public contract provides that the contract shall be let to the lowest responsible bidder, and the lowest bidder has submitted two samples with a different price upon each sample, but both of which are lower than the prices submitted by any other bidder, the public officers may award the contract to the lowest bidder, but not for the goods made according to the more expensive sample.

      Gott & Looker, for plaintiff.

      Stearns, Chamberlain & Royon and E. K. Wilcox, for defendants.
   MARVIN, J.

This suit brought by Locher, as a taxpayer, to have the board of education of the city of Cleveland enjoined from carrying out a contract with the Superior Seating Co., a corporation, for the furnishing of 1,200 chairs for use in furnishing the West Technical High School of said city. The contract resulted from the acceptance by the school board of a bid made for the furnishing of these chairs by the Superior Seating Co. This bid was made in answer to an advertisement for bids made by the school board for such chairs. This advertisement called for bids to be made upon specifications on file with the director of schools of said city, the bids to be opened at 12 o’clock noon on December 4, 1911.

A number of bids were made, including two bids by the Superior Seating Co. One of these bids proposed to furnish the chairs in accordance with the specifications at $1.33 each; the other at $1.37 each. All other bids were for a greater amount than that named in either of the bids of the Superior Seating Co. The board awarded the contract upon the bid at $1.37 per chair.

The statute regulating contracts of this sort is Sec. 7623 G-. C. This section is long, and the manner of procedure is divided into subdivisions, the sixth of which reads:

“None but the lowest responsible bid shall be accepted. The board, in its discretion, may reject all the bids or accept any bid both for labor and material for such improvement or repair which is the lowest in the aggregate. ’ ’

The provisions of the specifications are these:

‘ ‘ Backs and seats to be of five-ply veneer, surface of birch, curved so as to form comfortable seats; edges to be nicely finished. All wood work to be smooth, and to be stained a dark brown shade, to be furnished by school architect F. S. Barnum, finished with a heavy body of durable varnish, dull finish. And a sample chair finished as specified must be furnished with the bid.”

To this was added, before the bids were made and as a part of the specifications on file with the director of schools, an alternative for plain oak veneer finished with dull varnish, sample to be submitted; also for birch with dark weathered oak stain and dull finish.

On the part of the plaintiff it is urged, first, that the Superior Seating Co. is a responsible bidder. This is conceded by the defendants. Of course it must be conceded, because the defendants contracted with this same bidder. The price at which the chairs were to be furnished under the accepted bid was certainly not the smallest amount of money for which this bidder proposed to furnish chairs which should in all respects correspond with the specifications, but it is said that this does not determine certainly whether the bid at $1.33 was the lowest bid, not withstanding it proposes to furnish the chairs for less money than the accepted bid. “Lowest,” as applied to money, ordinarily moans “smallest” amount, and if the statute uses the word in this sense, then the bid accepted was not the lowest bid. If the word “lowest,” as used in this statute, has its ordinary meaning, it is plain that the defendants, acting as a board, violated the statute in accepting the bid at $1.37. But it is said that the statute did not take from the board the discretion to determine what bid under all the circumstances was the lowest, and that it might determine that a bid for an amount greater than the smallest amount of money was the lowest bid. As already said, this would be a departure from the meaning of the word 1 ‘ lowest ’ ’ as used in common parlance. That the board had the discretion to determine whether a bidder was responsible, so that if a contract was entered into it could be relied upon to furnish the chairs which should be in exact accord in every particular with the specifications, can not be doubted. It exercised that discretion and determined that the Superior Seating Co., ■which made the bid at $1.33, was responsible in the sense indicated.

The bidder furnished a sample under each bid. The samples were not entirely alike, nor was either sample in exact accordance with the specifications, nor was it expected they would be, because the specifications would require the manufacture of chairs not such as are kept in stock by the manufacturer. This is clearly shown, and, in deed, is conceded.

There was a difference in these samples, the chief being in the castings, which were a part of the chairs. The castings on neither sample were of the weight provided for in the specifications, but this would not necessarily require the rejection of either of the bids. As is said in the case of Many v. Cleveland 10 Circ. Dec. 157 (19 R. 58), speaking of a bid for lamps to be furnished to the city of Cleveland and of a sample furnished with the bid:

“That lamp did not in all its details correspond with the specifications. The evidence shows that if the contract is entered into, it is not expected that exactly such a lamp as that which was present at the bidding and furnished by Raykin (the successful bidder) is to be used, but the contract which will be entered into, if this injunction is not allowed, is in evidence before us, and that contract has as a part of it all the specifications which are on file in the director’s office. So that if this injunction is allowed, it will prohibit the city from entering into a contract in which the party with whom it is to contract agreed to furnish everything which the specifications require.”

From this it will be seen that the fact alone that the sample furnished does not fully meet the specifications, will not justify the rejection of the bid. But it is said that the sample accompanying the bid at $1.33 had a different finish from that which accompanied the $1.37 bid; that the special object in having a sample furnished was that the board might determine whether the finish of the chairs furnished under a bid, if it should be accepted, would be satisfactory to the board. The language of the specifications as to finish is this:

“All wood work to be smooth, and to be stained a dark brown shade furnished by school architect F. S. Barman and finished with a heavy body of durable varnish, dull finish, and a sample chair finished as specified must be furnished with the bid.”

And then in the added specifications the word “finish” is used in this language:

‘ ‘ To include an alternative for plain oak veneer finish with dull varnish, sample to be submitted; also for birch with a dark weathered oak stain and dull finish. ’ ’

On the part of the plaintiff it is urged that the word ‘ ‘ finish, ’! as here used, plainly has reference to the wood work of the chair, because it says “it is to be finished with a heavy body of durable varnish, dull finish, and a sample chair finished as specified must be furnished,” etc.; and again in the added specification, where “it is to be plain oak veneer finish with dull varnish, sample to be submitted; also for birch with a dark weathered oak stain and dull finish.”

It is not contended that so far as the finishing of the wood work of the chairs is concerned there is any material difference in the samples, but the sample furnished with the $1.33 bid shows a different construction of the metal part of the construction in this, that whereas the metal shown in the $1.37 sample is solid without openings or beads, that furnished with the $1.33 sample has openings and beads. And it is urged that this may properly be considered as a part of the finish of the chair as that term is used in the specifications.

This contention is not sound. The word “finish,” as used both in the first specifications and in the added specifications, clearly refers to the finish of the woodwork, the polishing, veneering and varnishing, and perhaps the outer coat of japan or varnish to be put upon the metal work, and in this respect the two samples are alike. If the school board desired to have the metal of a particular kind and form, it could easily have said so in its specifications. It saw fit to make its specifications without so saying.

The statute under consideration differs from some of the statutes which refer to the letting of public contracts by competitive bidding. Those statutes provide that the contract shall be let to the party who makes the lowest and best bid. Under such statutes it has been held by this court, and by the Supreme Court of this state, and by courts in other states, that the board or officers whose duty it is to let the contracts are not bound to let it to the responsible bidder who offers to furnish the article for the smallest amount of money, but the discretion is left to the public authorities to determine whether a bid is, taking into account all matters connected with the question of whether the thing- proposed to be furnished is by him-whose bid requires a greater amount of money to be paid, and is on the whole the one which economy dictates as that which will be best for the public.

We think that the discretion left with the board under the statute now under consideration is less than that left where the statute requires the lowest and best bid to be accepted, and we think, to secure to the public the benfit of the competitive bidding provided for in the statute, the discretion left with the board is the discretion to determine whether he who offers to do for the least amount of money is a responsible bidder, so that he may be depended upon to furnish that which corresponds in all respects with the specifications, and that the board has not the discretion to say that because a bidder will furnish something better than the specifications require at a higher price than a responsible bidder will furnish that which is exactly what the specifications require, is the lowest because the best bidder.

As said in Beaver v. Institution for the Blind, 19 Ohio St. 97:

“The construction put upon a statute must not be such as to nullify or reverse the evident policy of the statute and to render possible and easy the exercise of such favoritism by the trustees toward particular parties as it is the obvious policy and intention of the statute to render impossible.”

In Coppin v. Hermann, 9 Dec. 146 (6 N. P. 452), it is said:

“Where by the terms of a statute the contract for public improvements is to be awarded to the person who offers to furnish the materials and perform the labor required at the lowest price and gives good and sufficient bond to the acceptance of the particular public officers having in charge the work for the faithful performance of the contract, the statute is mandatory, and no discretion as to the awarding of the contract is vested in said officers.”

.See also Boren v. Darke Co., 21 Ohio St. 311, 312. The third paragraph of the syllabus reads:

‘ ‘ Where a bidder includes in his proposal with the labor and materials specified in the .advertisement, for which proposals are invited, other labor and materials not therein called for, and the price proposed is an aggregate sum for the whole, under said act it can be regarded only as a proposal for the labor and material advertised for; and if such price is not lower than that of another bidder whose proposal embraces only the labor and materials called for in the advertisement, he is not entitled to have the contract awarded to him, if the other bidder otherwise complies with the act.”

It is urged further on the part of the defendant here that the amount involved is too trivial for the court to interfere. This contention we do not regard as sound. The amount involved upon the entire award would be $48. This, as compared with the whole contract, is not a large amount, but the principle here involved is such that we regard the precedent as a dangerous one to allow this contract to be carried out. The bid accepted was not that which proposd to furnish the chairs for the least amount of money. There was another bid by this same responsible bidder to furnish the chairs in exact accord with the specifications for a less amount of money and therefore it was a lower bid, and there was nothing on the samples furnished which could be construed as relieving the bidder, if the contract was awarded to him, from complying with all the terms of the specifications.

We reach the result, therefore, that the injunction here prayed for must be allowed.

Winch and Niman, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    RECEIVING STOLEN GOODS
    [Cuyahoga (8th) Circuit Court,
    November 18, 1907.]
    Winch, Henry and Marvin, JJ.
    Morris Krause v. State of Ohio.
    In Prosecution for Receiving Stolen Property Evidence of Other Like Offenses at about Same Time Admissible.
    A conviction for receiving stolen property will not be set aside because the evidence received at the trial tended to prove the receipt of several other similar pieces of stolen property at about the same time as those for the receiving of which the defendant was on trial, without making it certain which of the several pieces were the ones upon which the prosecution was based.

      F. P. Walther, for plaintiff in error.

      8. V. McMahon, Pros. Atty., for defendant in error.
   MARVIN, J.

Morris Krause was prosecuted before a police court of the city of Cleveland on an affidavit charging him with having received, on or about December 6, 1906, four brass castings, the property of the New York, C. & St. L. Ry., which property had been stolen from said company, and that Krause received it, knowing it to be stolen. The trial took place on January 18, 1907. Complaint is made that the court permitted evidence on the part of the boys from whom it is claimed Krause bought the castings, of quite a number of sales of stolen castings to him, Krause; that these various sales were not very far removed in date from the one charged in the affidavit against Krause; that the court allowed a verdict of guilty to stand under this evidence, whereas, it is said, that the evidence is such that it will be impossible, if Krause is ever prosecuted again for receiving any of the brass castings which he purchased from these boys, to know whether he is being prosecuted for the same offense upon which he has already been found guilty. The real difficulty in the case seems to be that the evidence tended to show that Krause had been guilty of receiving stolen brasses knowing them to be stolen, on several occasions near the time charged in the affidavit in this case, and so near to the time as that proof of other of these purchases might have been sufficient to convict of the offense charged in the affidavit; and it is said further, that there is one occasion when the evidence shows that Krause purchased brasses from these boys, which brasses were the property of the Brie Ry., or at least taken from the yards of that company. It is urged further that the evidence does not show that any of the brasses purchased by Krause from these boys was the property of the New York, C. & St. L. Ry. As to this last claim it may be said that the testimony is, the brasses were taken from the premises without any further showing than that. We think the jury might be justified in saying that it was the property of that company. Property in the keeping of one may properly be assumed to be the property of such keeper in the absence of any evidence tending to discredit or disprove such ownership. The evidence in the ease is that quite a large number of these pieces of brass were taken by the boys who testified, and who say they sold them to Krause, from the yards of the New York, C. & St. L. Ry, near the time charged in the affidavit, and that at or about the time charged in the affidavit, they sold to Krause such brasses. They say that on one of these occasions they sold to Krause either four or five pieces of these brasses, which they got from- the New York, C. & St. L. Ry. yards. Evidence of various sales might have been properly permitted as tending to show knowledge on the part of Krause that the goods were stolen, can not be doubted under the authority of Tarbox v. State, 38 Ohio St., 581. That a conviction could be had under the affidavit for the offense charged, though the time was not shown to be the time charged in the affidavit, can not be doubted, because it is expressly provided in Sec. 7215 R. S. (Sec. 13581 G. C.), that:

“No indictment shall be deemed invalid, nor shall the trial, judgment or other proceeding be stayed, arrested°or in any manner affected * * * for omitting to state the time at which the offense was committed, nor stating the time improperly. ’ ’

If then, the evidence here justified the finding that Krause had received stolen brasses, the property of New York, C. & St. L. Ry., knowing them to be stolen, at a time so near to that charged in the affidavit, the judgment can not be' reversed because the evidence tended to show that he was guilty of like offenses near to the same time. We find no error in the record and the judgment is affirmed.

Winch and Henry, JJ., concur.


text:
    CONTRACTS
    [Cuyahoga (8th) Circuit Court,
    November 18, 1907.]
    Winch, Henry and Marvin, JJ.
    Louis J. Lee v. F. W. Benedict.
    1. Prejudice Caused by Reference to Judgment Below Cured by Explanation that Judgment was by Default.
    Any error caused by plaintiff, while on'the witness stand, speaking of the> judgment secured in the justice court, is cured by the court explaining in its charge to the jury that no trial was had in the justice court and that the judgment there was by default.
    2. Duty of Court to Interpret Written Contract in Light of Evidence.
    It is the duty of the court to interpret a written contract; and hence, when the evidence makes it clear that the parties did' not intend to make the contract which the ordinary meaning given to the language used would indicate, it is not error for the court to so interpret it as to give it the meaning intended.
    Error.

      J. A. Thompson, for plaintiff in error.

      Samuel Burgert and George A. Grooi, for defendant in error.
   MARVIN, J.

Suit was brought in the court of common pleas by Benedict against Lee. In the plaintiff’s petition he avers that:

“On or about the- day of-, 1903, he and the defendant entered into a verbal agreement whereby the defendant agreed to and did employ said plaintiff to do and perform certain duties, which duties consisted of selling and leasing properties listed with the defendant, in the city of Cleveland, Ohio, and for such services the defendant agreed to pay the plaintiff a fixed salary and 25% and 33-1/3% of the commission so received by the defendant on all properties sold and leased by plaintiff for the defendant; an itemized account of which is hereto attached, marked Exhibit A., and made a part of this petition.”

The account attached is a long one and purports to set out leases and sales made, upon which the plaintiff was to receive commissions, with the amount of commission received by the defendant and the part thereof to which the plaintiff claims to be entitled, and a statement of payments which had been made by the defendant to the plaintiff. To this petition the defendant answered, that he is in the business of leasing business blocks, etc., that he receives as compensation certain commissions, that the plaintiff entered his employ on March 17, 1903, his proposed duties in said employment being to assist in the transaction of the aforesaid business, for which he was to receive a salary of $40 per month, and a certain commission on briskness transacted through him. Defendant says that plaintiff continued in his employment until July 10, 1905. Defendant says that he paid the plaintiff, from time to time, for his services so rendered the sums of money set forth in the itemized statement in plaintiff’s petition contained. Defendant now says that the total amount paid, was $539.19 in excess of the amount due from the defendant to the plaintiff for his labor and services performed as aforesaid, and he prays for judgment against the plaintiff for that sum.

Plaintiff replied to this answer, denying that he had received anything in excess- of the amount admitted, but that there was still due him the amount prayed for in his petition, which was $226.29, with interest from July 11, 1905. The result was a verdict for the plaintiff, and by proper proceedings the ease is here for review on error, a bilí of exceptions being filed, containing all the evidence offered on the trial of the case.

This suit was first brought before a justice of the peace and was appealed to the court of common pleas. The plaintiff in giving his testimony in the last named court said to the jury that he recovered judgment before the justice. The way in which he cane L> say this was as follows: The plaintiff was being examined, and was asked, after having stated that he had brought about certain deals for which he had received a compensation, ‘ ‘ and the balance is how much ? ” To which he answered: ‘ ‘ Two hundred and twenty-six dollars and twenty-nine cents.” The following question was then put to him: “With interest from when?” To which he answered: “I got a judgment in the lower court.” At this point the witness was stopped and counsel for the defendant said: “I object to the statement of the witness.”

After some colloquy between the court and counsel, the «court said: “Proceed, I will take care of that at the proper time.” Beyond'this, there was no statement as to who got a judgment before the justice, and in the charge the court, speaking of this matter, said to the jury: .

“When Mr. Benedict was on the stand he was asked something and he answered that judgment in the other trial, or words to that effect, was obtained at a certain time. I thought at the time that it was very prejudicial and ordinarily it is, but in view of what I am going to say to the jury, I don’t think that will hurt in any way what I am going to say — that won’t hurt anybody. It is true that, for instance, if a petition comes in here, and the lawyer who draws it up, sets up in the petition that judgment in the case below was for the plaintiff or defendant, we would strike it off, or, perhaps, require him to pay costs before another action is brought and so, if a lawyer says in the opening of his case, judgment was for plaintiff or defendant, the case will be continued probably, and disregarded as utterly wrong, if he should say to the jury that the case below was won by defendant or plaintiff, and you can see that it is perfectly true, because the parties are both entitled to have it tried here as though it were never tried before. But the transcript in this case shows what was done in the court below, and reads in this way: ‘July 31, 1905. 10 a. m. Case called, plaintiff in court; defendant came not for an hour thereafter; Samuel Burgert sworn and examined on behalf of the plaintiff. No defense. Whereupon the judgment was rendered for plaintiff.’ So, gentlemen, that having been the history of the case, and I now tell you in substance the case never was tried before at all; defendant was not there, so I think that cures any injury done by the statement, and I now think that Mr. Benedict did not at all mean to prejudice you in any way or do anything he ought not to do; so that is out of your consideration. This is the first time the case has ever been tried, and I do not consider Mr. Benedict has been guilty of any impropriety and will bring in the verdict you think the facts will warrant.”

In view of this language of the court in its charge to the jury we feel that there could have been no possible prejudice to the defendant by this statement made by the plaintiff. The jury were distinctly told that they were not to consider it; they were told further that the defendant was not in the justice court and that they were in no wise to be affected by that statement, evidently inadvertently made by the plaintiff, and not directly in response to any question put to him.' The question being from what time he was to recover interest, he probably expected to answer that in the court below he got interest from a given date. Of course this would be improper, but in view of the fact that the defendant never appeared in the justice court and that there had never been any trial before the justice of the peace to determine what defense there could be to this case, we think there should be no reversal on account of this action of the witness and of the court.

Upon the trial it developed that the plaintiff entered the employ of the defendant under a written contract and not under a verbal agreement, as set out in the petition; that he continued for a time to work under this written contract,- and thereafter, that he worked under a new verbal contract entered into between the parties. There is no question as to what rate of compensation the plaintiff was entitled to recover under the verbal contract. There is, however, a dispute as to when the change was made, from the written to the verbal contract, and since under the verbal contract the salary was to be at a higher rate than under the written contract, as is agreed on both sides, and the commissions were to be at a rate about which there is no dispute under the verbal contract, to-wit, one-third of such commissions as the defendant should receive from his clients, the question in dispute and tried out before the jury was as to the commissions which the plaintiff was entitled to receive while working under the written contract, as well as the length of time that he worked under that contract, and perhaps there was some dispute as to the amount which had been paid to the plaintiff by the defendant, the defendant claiming he had paid somewhat more than was admitted by the plaintiff.

There was one item amounting to $60 which was allowed by the jury to the plaintiff and which the court, upon motion for new trial, required the plaintiff to remit as a condition for the affirmance of the judgment. The plaintiff thereupon remitted this item of $60 and, as so reduced, the court overruled the motion for a new trial and entered judgment upon the verdict.

It is urged that this judgment, even with the remittitur, was erroneous, unless the defendant consented to the remittitur.

We know of no authority for such a proposition, nor do we know of any reason for such a proposition. The practice for so long a time that the memory of man runneth not to the contrary has been to enter the judgment upon the plaintiff remitting such an amount as the court thinks should be remitted, without reference as to whether such judgment is satisfactory to the defendant or not. There was no error in this regard, provided the evidence was such as to justify the jury in finding the amount, after deducting the remittitur.

It is said further, however, that the court erred in its charge to the jury in undertaking to construe the written contract. That written contract reads, so far as it need be considered in connection with the question now under consideration, as follows :

“For said services, Louis J. Lee hereby guarantees to F. W. Benedict a stated monthly salary of $40, together with a commission, the percentage of which is hereinafter specified.
“It is understood that said Benedict shall participate in the brokerage commission aforesaid to the extent of one-half of one per cent, of said commission.” .

The lanuage used by the court in reference to this is as follows:

‘ ‘ There is one other thing I must speak to you about in this contract. The language of the contract is, that Mr. Benedict shall be entitled to brokerage commission to the extent of one-half of one per cent, of said commission. It is always for the court to say what the contract means, also for the court to tell the jury what a contract means. But the court, in this ease, is of opinion that these parties unquestionably, by their conduct and their dealings with each other — I don’t think any other conclusion than this could be drawn from the testimony of these two gentlemen on the stand, that their construction of this contract was, that the first period Mr. Benedict was to get one-fourth of the commissions and during the subsequent period one-third; that manifestly was the construction upon it, and there is one question, to find out what these gentlemen meant, or we want to know what these gentlemen intended to do, and I think it is perfectly plain that what they intended to do was, that at the beginning, Mr. Benedict should receive one-fourth of the commission in certain cases and subsequently one-third.’.’

The court was clearly right that no lawyer would say that the words used, to-wit, “one-half of one per cent.” of said commission meant one-quarter of the entire commission. It is not only true that no lawyer would put that construction upon them, but no other man who understands the rgcaning of the English language would put that construction upon these words used alone, and without something to aid him in determining that the parties meant what the court said they clearly by their conduct showed they did mean, and by their conduct thus construed the contract to mean. The evidence is substantially to the effect that the commission received by the defendant for his leases and sales was 2% to start with. It is almost inconceivable that the parties meant that the plaintiff was to receive but one-half of one per cent, of this 2%. That they did not mean this is fairly inferable from the way in which the evidence shows the defendant paid the plaintiff from time to time; but it seems to us to be rendered absolutely certain by the testimony of the defendant himself, where, in testifying as to a certain transaction, he is asked: “You remember the transaction of the Pleasant Hill Land Company?” (Answer) “Yes, sir.” “Your commission in that was $300?” (Answer) “Yes, sir.” “He was entitled to $75?” (Answer) “No, sir.” “What was he entitled to?” (Answer) “He had very little to do with that deal, and we had a mutual understanding to the effect I would allow him a lump sum of $60.” “Then, without that mutual understanding he would be entitled to $75 ? ” (Answer) “ If we did not have that understanding, yes.” “That is what I asked.” (Answer) “Sure.” “You had some little dispute about a commission that was coming to him on that — the $75?” (Answer) “Yes, sir.” “And you finally settled the matter by giving him $60, is that it?” (Answer) “That is it exactly.”

Now that this transaction was under the written contract is clear, and this is the only contract under which the plaintiff claims that he was entitled to one-quarter of the commissions which the defendant should receive. The defendant himself says that but for an arrangement made between them, by which the plaintiff accepted $60 because of the fact that it was claimed that he did not perform full services, he would have been entitled to $75; that is, to one-quarter of the commissions which the defendant received. This is a complete recognition on the part of the defendant that his understanding of this contract was that claimed by the plaintiff, and that which the court said to the jury the conduct of the parties showed was what they meant by it. So that whether it was the duty of the court to take into consideration the evidence and the conduct of the parties and so construe this contract to the jury, or to 'have instructed the jury properly as to how they should construe it under the evidence, showing how the parties had acted under it, there was no prejudice to the defendant in the court so construing the contract. It is perfectly clear that the parties themselves understood the contract to mean what the court said their conduct showed they understood it to mean. There was, therefore, no error to the prejudice of the defendant if what the court said was the true construction of this contract.

Complaint is made also that the court erred in refusing to give certain requests to charge which the defendant made. The first of these reads:

“The plaintiff is not entitled to recover any commissions unless he has first shown that either the owner or the purchaser or the lessee of the property entered into the transaction as a result of the plaintiff’s exclusive effort.”

This was properly refused. It was not necessary that the business should have been transacted by reason of the exclusive efforts of the plaintiff in order to entitle him to a commission.

The second request reads:

‘ ‘ The word, ‘ commission, ’ as used in the contract means the ■percentage which is found by multiplying the amount of the sale or lease by the rate per cent.”

There was no error in the court declining to define a word, the meaning of which is perfectly plain to every man who fairly understands the English language. The word “commission” which it was asked should be defined, must be presumed to have been understood by the jury. It might be different if some word had been used which has a technical meaning, and which technical meaning is not generally understood, but there was no more propriety in the court being required to define the word “commission” than there would have been for him to determine the word “salary” or “compensation.”

The third request reads:

“One-half of one per cent, commissions, as the phrase is used in the contract, means one-half of one per cent, of the amount obtained by multiplying the amount of the sale or transaction by the rate per cent., which is admitted in this case to be two per cent.”

That this was properly refused results' from what has already been said as to the charge of the court upon the true construction of the contract entered into by the plaintiff and defendant.

The result is that we do not find any error in the record justifying a reversal and the judgment is affirmed.

Winch and Henry, JJ., concur.


author: METCALFE, J.

text:
    INSURANCE
    [Cuyahoga (8th) Circuit Court,
    1912.]
    Niman, Metcalfe and Pollock, JJ.
    Judges Metcalfe and Pollock of Seventh Circuit Sitting in Place of Judges Marvin and Winch.
    St. Elizabeth Roman Catholic Union v. John Kocis.
    Commission of Unlawful Act no Defense to Insurance When not Cause of Death or Injury.
    The fact that the insured was killed or injured while in the commission of an unlawful act is no defense to an action upon a life or accident insurance policy, unless the wrongful act was the proximate cause of the death or injury.
    Error.
   METCALFE, J.

The plaintiff in error is a mutual benefit association, and as such it issued a policy to John Kocis on July 25, 1910, insuring him during the continuance of the policy against loss of life or against the loss of a limb resulting from accident. While the policy was in force Kocis received an injury which he claims under the terms of the policy entitled him to the benefits thereof. The society refused to pay on the ground that such injuries were received while in the commission of an unlawful act. Kocis brought suit and recovered judgment in the common pleas court against the union, and it is to reverse that judgment that error is prosecuted here.

On the trial of the case below evidence was offered on the part of the defendant, here the plaintiff in error, tending to show that at the time he received the injuries of which he complains, Kocis was in the commission of an unlawful act. That he and another were engaged in the act of stealing hay which belonged to the city of Cleveland and loading it upon a wagon with intent to carry it away. That while in the act of loading the hay they were observed by an officer who ordered them to desist and attempted to arrest them, or at least to stop them from taking away the hay. That thereupon Kocis and his associate drove off with the hay that they had loaded, and while driving rapidly the load was partially overturned. ■ Kocis was thrown to the ground and he received an injury which resulted in the loss of one of his feet. This evidence was admitted, but before the ease was finally submitted to the jury the trial judge withdrew it and instructed the jury to disregard it. Thus arose the important question in this case, whether or not, independent of the terms of the policy such as was issued by the plaintiff in error to the defendant, such acts as those of which Kocis was said to be guilty constitute a defense to the policy.

There is no provision in the policy forfeiting it or avoiding a recovery in case the injuries were received in the commission of any unlawful act. It is urged that the following provision contained in the policy is sufficient to cover any injury of that sort:

“If, however, such member himself causes his death or disability, and where this is found out and has been proven after a thorough investigation, no benefit whatever can be claimed. In such case the respective member, even though he survive, will be scratched from the list of the union once and forever. ’ ’

"We are of the opinion that this clause only covers such injuries as may be self-inflicted and death by suicide, and is not broad enough to cover anything else.

So that the sole question, we think, here is whether or not, independent of any provision in the policy, if the assured was engaged in an unlawful act, does that constitute a defense to the payment of the benefits provided by the policy? Nearly all the decisions we have been able to consult upon this question turn upon a provision of the policy itself, but we find it to be the law, as expressed in the great weight of authority, that the provision prohibiting a recovery for an injury received while doing an unlawful act refers to such injuries as may happen as the natural consequence of the act, and its probable and to be anticipated consequences. A known violation of a positive law will avoid a policy, if the natural and reasonable consequences of the violation of law are to increase the risk. A violation of law, whether the law is a civil or criminal one, does not avoid the policy if the natural and reasonable consequence of the act does not increase the risk or cause the injury. The wrongful act must have been the proximate cause of the injury or death. The injury or loss of life must be connected with the crime as its consequence — by reason of the guilty act the injury must have occurred. There must be some positive connection between the act which is the violation of law and the injury to the assured.

Thus in the ease of Griffin v. Western Mut. Ben. Assn., 20 Neb., 620 [31 N. W. 122], where the assured had committed a robbery and while leaving the building was killed by a policeman, the court held that as the commission of the crime had been completed and the death occurred afterward, there was no forfeiture. And we think that this holding expresses the law as sustained by the great weight of authority;

Now, in this case, if Kocis had committed an offense it was not one the natural and probable consequence of which would have led to his death or injury. The crime, if any was committed, had been completed before the injury occurred. At the time of the injury he was riding upon a wagon and the proximate cause of the injury was the overturning of the wagon and not the stealing of the hay, hence we think that the defense that he was injured in the commission of an unlawful act does not avail in this case, and there was no error in excluding the testimony in question.

It is urged, also, that the court committed error in admitting in evidence the book containing the constitution of the union, that book having been printed in a foreign language. We are unable to see how any one could be prejudiced by the admission of this book. It is not likely that any of the jurors were able to read it, and there is no proof that any of them could read it, and we think there could be no prejudice in its admission. The only clauses in it which it is claimed have any bearing upon the controversy at all in this ease were translated and the translations given in the pleadings and in .the bill of exceptions. The rest of it we have no doubt was a closed book to the jurors, and even if it was not, there is nothing whatever shown to indicate that any one could be prejudiced by its. admission in evidence, hence we think the judgment in this ease should be affirmed.

Niman and Pollock, JJ., concur.


text:
    PRINCIPAL AND AGENT
    [Cuyahoga (8th) Circuit Court,
    1912.]
    Marvin, Niman and Metcalfe, JJ.
    Judge Metcalfe of Seventh Circuit Sitting in Place of Judge Winch.
    Ohio & Pennsylvania Coal Co. v. Theodore F. Beidler.
    Acceptance of Order Secured by Agent at Less than Authorized Price Gives Him Right to Commissions.
    When an agent has been authorized to sell goods on commission, the fact that he has sold them at a lower price than authorized by his principal does not defeat his right to commissions, the principal having accepted and filled the order.
    Error.
   METCALFE, J.

The plaintiff in this case was defendant in the action in the court below. That action was brought by Beidler to recover commission of two cents per ton on 108,000 tons of coal sold by the plaintif company to the Colonial Salt Co. The plaintiff below obtained judgment and error is prosecuted here to reverse that judgment on the ground that the verdict is against the weight of the evidence.

Beidler in his petition claims that he had a contract with the Ohio & Pennsylvania Coal Co. by which he was to receive two cents per ton for coal sold by him and that in accordance with that contract he did sell coal to the Colonial Salt Co. This is denied by the plaintiff company.

We are not able to say that the verdict of the jury in this case is manifestly against the evidence. It appears that negotiations began between Beidler and the Ohio & Pennsylvania Coal Co. some time in July, 1908, and that Beidler was given a price of $1.05 per ton, and was to receive a commission of three cents per ton upon the sales made. Beidler entered into negotiations with the salt company through its manager, Mr. Turner, but the price of $1.05 did not seem to be satisfactory to Mr. Turner, and he asked Beidler to see Mr. Zerbe, the manager of the Ohio & Pennsylvania Coal'.Co., and get a bettr price. Mr. Zerbe, upon being told by Mr. Beidler that he would have to make a lower price, gave him a price, of $1.03 and stated to him “if you have to take that much lower price you will have to take a less commission.” And then continued Mr. Zerbe, “I authorized him to get $1.02 and we agreed to give him two cents a ton. ” At this same time Mr. Zerbe dictated a letter to Mr. Turner, the manager of the salt company, which he gave to Beidler. This letter is signed by “The Rice Coal Company by J. B. Zerbe, President.” The coal which the salt company desired to.purchase was known as Bergholtz coal, and was produced by the Rice Coal Co. and not by the Ohio & Pennsylvania Coal Co. This letter was given to Mr. Beidler, and he called at the office of the salt company; not finding Mr. Turner in He left the letter at the office. The matter remained thus for several weeks, when it was taken up again directly between Mr. Zerbe and Mr. Turner, and a lower price than $1.02 was given to the salt company, and at that price the sale was made. It seems to us clear from this evidence that it was through the instrumentality of Mr. Beidler that the parties were brought together, in making this sale. All of the negotiations were carried on through Beidler up to the time the sale was made, and Beidler having been instrumental in bringing the parties together, the fact that the contract was finally consummated without further intervention on the part of defendant dbes not prevent him from recovering Ms commission; nor could the fact that the sale was made at a lower price than that given to Beidler defeat him. See Plant v. Thompson, 42 Kan., 664 [22 Pac. 726]; Hoadley v. Savings Bank of Danbury, 71 Conn., 599 [42 Atl. 997; 44 L. R. A., 321],

We are, therefore, of the opinion that the judgment in this case should be affirmed.

Marvin and Niman, JJ., concur.


text:
    ASSIGNMENTS — BILLS AND NOTES
    [Cuyahoga (8th) Circuit Court,
    1912.]
    Marvin, Niman and Metcalfe, JJ.
    Judge Metcalfe of Seventh Circuit Sitting in Place of Judge Winch.
    Chas. G. Alpeter v. J. L. Free.
    Assignor of Nonnegotiable Instruments not Liable as Endorser.
    The assignor of a nonnegotiable bond and coupons does not incur liability as an endorser.
    Error.
   METCALFE, J.

The plaintiff in error was plaintiff below, having brought this action to recover from the defendant, J. L. Free, as indorser on an interest coupon of a bond executed by the O. C. Saum Real Estate Co. This bond bears date May 15, 1907, is for $500, and is payable to the defendant J. L. Free. On July 10, 1907, the defendant indorsed the bond upon the back thereof as follows:

“Cleveland, Ohio, July 10, 1907. For value received I hereby sell, assign, and transfer all my right, title and interest in the within bond to C. J. Alpeter. J. L. Free. ’ ’

There is no separate indorsement upon the coupon sued upon or upon any of the coupons. This bond also is not payable either to bearer or order and contains no words of negotiability. It also contains the following provision:

“It can be transferred by indorsement, record thereof on the company’s books.”

The coupon, omitting dates, signatures, etc., reads as follows:

“The O. C. Saum Real Estate Co. will pay to bearer $15 in gold coin of the United States at the office of the Cleveland Trust Co. of Cleveland, being six months’ interest then due on its six per cent. 10-year debenture bond No. 53.”

On this state of facts is the defendant liable as an indorser of the coupon? We think not. Neither the bond nor the coupon is negotiable. The contract of indorsement relates entirely to negotiable paper. The assignment of nonnegotiable paper does not render the assignor liable as an indorser. We do not place our holding upon the theory that the coupon required a separate indorsement, for we are satisfied that the interest coupon is merely an incident of the bond and title to it will pass by transfer of the bond. We place our holding purely upon the ground that the assignor thereof incurred no liability as indorser or otherwise by a simple transfer of the instrument. 10 Cyc., 599; National Bk. of New London v. Lake Shore & M. S. Ry., 21 Ohio St. 221; Freon v. Carriage Co., 42 Ohio St. 30 [51 Am. Rep. 794]; Zander v. New York Security & Trust Co. 178 N. Y., 208 [70 N. E. 449].

Marvin and Niman, JJ., concur.


author: WINCH, J.

text:
    MINES AND MINERALS — WORDS AND PHRASES
    [Cuyahoga (8th) Circuit Court,
    October 14, 1912.]
    Marvin, Winch and Niman, JJ.
    A. O. West v. Fred L. Hall et al.
    “Adjacent” in Oil and Gas Lease not Extended to Cover Eight Farms or Distant Two Miles.
    When the conditions of an oil and gas lease are that the lease is-to be null and void if the lessee does not drill on land adjoining or adjacent to that leased within a certain time, drilling upon land two miles distant and separated by eight farms from the land leased does not prevent forfeiture of the lease, as that is not adjacent within the meaning of the lease:
    Appeal.

      L. D. Hamlin and H. C. Wilcox, for plaintiff.

      Smith, Taft & Arter, for defendant.
   WINCH, J.

This is an action for the cancellation of an oil and gas lease which contains the following provision:

“It is further agreed by all parties hereto that if a well is not commenced drilling on this land, adjoining or adjacent laud within six months from the date hereof, then this contract is null and void and not binding on either party. ’ ’

The evidence in this case shows that no well was drilled on the demised premises or on land adjoining it, within the six months. Within that time the defendant, or his successors in interest under the lease, did drill four wells on other ■ property leased by him, the first well being two and one-half miles distant in a direct line from plaintiff’s land and the other three within a radius of fifteen hundred feet of the first well. Eight farms of usual size intervene between plaintiff’s land and the well first drilled; plaintiff’s land is in the center of the township and the wells are in the northeast corner of it. Most of the land in the northeast quarter of the township is under lease to defendant on similar terms.

Defendant claims these wells are on land adjacent to plaintiff’s land and save the forfeiture stipulated in the lease.

The main question in this case is the meaning of the word ‘ ‘ adjacent ’ ’ as used in this lease. ■

While many cases have been cited to us which define the meaning of that word when used in various contracts and statutes, no case has been brought to our attention which does so in regard to an oil and gas lease. It seems clear, however, both from the definitions of lexicographers and jurists that the word “adjacent” has a broader meaning than “adjoining” and that things may be said to be adjacent, even if something intervenes between them.

How far apart they may be and yet be considered adjacent must be determined from a consideration of the facts and circumstances surrounding the use of the word in each case and the meaning intended by the parties to be expressed by it, if it apparently has a special meaning.

The purpose to be served by the use of this clause in the lease, as determined from a consideration of the whole lease and the circumstances attendant upon its execution, must be first examined.

The main consideration moving the lessor to the execution of this lease was manifestly his desire to market the oil and gas under his land, if any, and receive the income therefrom.

When he provided, however, that the lease might continue in force if wells were drilled on adjoining or adjacent farms within the time stipulated (in which case the lease says he shall be paid one dollar per acre per year as rental under the lease), the lessor evidently had in mind some benefit to himself other than the marketing of his own oil and gas.

It was agreed on argument, by counsel on both sides, that this benefit to the lessor was the ascertainment, by proper drilling, of the fact as to the existence of subterranean oil and gas in his neighborhood, near enough to his lands to be some indication of the existence under his own lands of oil and gas in paying quantities.

What that distance is in the practical drilling of such wells, we are not advised by the evidence in this case, beyond the mere fact that defendant has seen fit to drill his wells fifteen hundred feet apart. Having nothing else to go by, not knowing the geological formations in this territory, their trend and dip, we take the farmer’s view of the case and hold that the drilling operations in this territory were too remote from plaintiff’s land to give him any indication of there being either oil or gas under his farm.

We therefore hold that the wells drilled within the six months are not on land adjacent to plaintiff’s farm and that, by a failure to comply with the quoted provision of the lease, it became void by its own terms.

Defendant, however, claims the lease is still in force by virtue of another clause in it, by which it is stipulated “to commence a well on said premises within one-half, year from the date hereof, or pay at the rate of $1 per acre per year quarterly, for each additional three months such commencing is delayed from the time above mentioned for the commencement of such well until a well is commenced; and it is agreed that the completion of such well' shall be and operate as a full liquidation of all rental under this provision during the remainder of the term of this lease. ’ ’

It seems clear that here is a provision for the payment of rent, if the lease continues in force by the drilling of a well on adjoining or adjacent land, and that this clause falls, with the whole lease, if forfeiture occurs under the clause first considered.

The clause containing the provision avoiding the lease for failure to drill on “this land, adjoining or adjacent land” comes after the provisions for the payment of rental at the rate of one dollar per acre per year, and the later clause must prevail, if there is any conflict. But we see no conflict; the first clause is a provision for the payment of rent, while the lease continues in force; the latter clause is a provision avoiding the whole lease, if certain conditions are not complied with.

Judgment for plaintiff as prayed for.

Marvin and Niman, JJ., concur.


author: NIMAN, J.

text:
    DAMAGES
    [Lorain (8th) Circuit Court,
    October 14, 1912.]
    Marvin, Winch and Niman, JJ.
    Elyria (City) v. Cleveland, S. & C. Ry. et al.
    When Provision in Surety Bonds for Liquidated Damages Treated as •Penalty.
    When a contract contains a large number of stipulations of varying degrees of importance, to be performed, and for the breach of some of which the damages are readily ascertainable, while as to others they are not, a single sum stipulated as damages for a breach, and applicable alike to each of the covenants, will be treated as a penalty, and in an action for a breach only the actual damages proved are recoverable.
    Error.

      G. B. Findley, City Solicitor, for plaintiff in error.

      Blandin, Hogsett & Ginn, for defendants in error.
   NIMAN, J.

On October 22, 1907, the council of the city of Elyria, the plaintiff in error, passed an ordinance known as No. 1425, granting to the defendant in error, the Cleveland, S. & C. Ry. the right to construct, maintain and operate certain tracks, on and in the streets of said city. By the terms of the ordinance, the railway company was to have the tracks on certain of the streets completed and in operation on or before August 1, 1908, while, as to certain other streets on which the right to lay tracks and additional tracks was granted, no time limit was specified within which the construction should be made.

The ordinance also' granted to the railway company an extension of all of its franchises for the period of twenty-five years from the date of the passage of the ordinance.

One section of the ordinance provided as follows.

“This ordinance shall take effect and be in force from and after its passage and earliest period allowed by law, and the filing of the bond required by ordinance No. 1421, and the payment of the costs of publication, as required by said ordinance, and from and after the acceptance of the terms and conditions hereof by said the Cleveland, Southwestern & Columbus Railroad Company, its successors or assigns, as required by said ordinance No. 1421.”

Ordinance No. 1421, referred to, is a general ordinance regulating the use of the streets of the city of Elyria for railroad purposes and was in force when ordinance No. 1425 was adopted. Section 8 thereof provides:

“Within thirty days from and after the final passage of the franchise ordinance, the grantee shall file with the city clerk its acceptance in writing of the terms and conditions of said ordinance, which acceptance shall be accompanied by a bond in the sum of ten thousand dollars ($10,000), conditioned upon the construction and equipment of said railroad within such times as shall be prescribed in the granting ordinance and to save the city harmless from the claims for damages or otherwise growing out of the construction of said railroad. ’ ’

The railway company on October 28, 1907, complied with-the section just quoted by filing its writen acceptance of the terms of Ordinance No. 1425, and also gave the bond required by this section and Sec. 18 of ordinance No. 1425. The bond was in the required sum of $10,000 and was signed by the defendant in error, the Fidelity & Deposit Co. of Maryland, as surety. The condition of the bond is as follows:

“Whereas, the said railway company by ordinance duly passed by the council of the city of Elyria, on October 22, 1907, and approved by the mayor of said city on October 28, 1907, was granted the right to construct, reconstruct and equip certain street railroads, within said city, and within the time and in the manner prescribed in said ordinance; and
“Whereas, on the 28th day of October, 1907, said railway company duly accepted in writing the terms and conditions of said ordinance;
“Now, Therefore, the said railway company shall well and truly construct, reconstruct and equip said street railroads within said city within the time prescribed in said ordinance, and as provided in ordinance 1368 of the city of Elyria, as amended October 1,1907, and shall save the city of Elyria harmless from any and all claims for damage or otherwise growing out of the construction and reconstruction of the said street railroads, then this obligation to be void; otherwise to be and remain in full force and virtue in law. ’ ’

The railroad company did not construct any of the tracks provided for in ordinance No. 1425, and on August 18, 1908, the city council of Elyria, acting under the power reserved by Sec. 11 of ordinance No. 1425, passed an ordinance declaring null and void the rights and privileges granted by Ordinance No. 1425, except the provisions thereof giving the company the right to construct tracks on three certain streets and the provision extending the company’s franchise for twenty-five years.

Thereafter suit was brought by the city against the railroad company and the surety company to recover on the bond, and on the trial the judgment was for the defendants.

The object of this proceeding in error is to secure a reversal of said judgment.

The only question presented for our determination is whether the $10,000 named in the bond is to be treated as a penalty or as stipulated or liquidated damages. If it is to be considered a penalty, the judgment of the court of common pleas must be affirmed, because there was no evidence produced of any loss or damage resulting to the plaintiff by the failure of the railroad company to construct its tracks within the time required by the ordinance, which is the only breach of the condition of the bond complained of. If, on the contrary, the amount named in the bond is to be considered as stipulated or liquidated damages, the judgment must be reversed.

The ordinances, in compliance with which the bond sued on was given, do not specify whether the amount for which bond was required to be given was for security merely against such loss as the city might suffer by the failure of the railroad company to perform the things required of it, or whether it was to be treated as liquidated damages. The bond itself does not denominate the sum named therein as penalty or liquidated damages.

Even if the ordinances and the bond had described the sum specified as either a penalty or liquidated damages, the characterization would not necessarily have been controlling, since the mere calling the sum named a penalty or liquidated damages is not conclusive of the intention of the parties, if that intention, gathered from the whole agreement, appears otherwise. Schofield v. Tomkins, 95 Ill., 190 [35 Am. Rep. 160].

The problem in every case is to arrive at the intention of the parties. The general rule on this subject is stated in Pomeroy, Equity Jurisprudence, Sec. 440, as follows:

“It has been repeatedly held that the words ‘penalty’ or ‘liquidated damages,’ if actually used in the instrument, are not at all conclusive as to the character of the stipulation. If upon the whole agreement the court can see that the sum stipulated to be paid was intended as a penalty, the designation of it by the parties as liquidated damages will not prevent this construction. If, on the other hand, the intent is plain that the sum shall be liquidated damages, it will not be treated as a penalty because the parties have called it by that name. It is welL settled, however, that if the intent is at all doubtful, the tendency of the courts is in favor of the interpretation which makes the sum a penalty. ’ ’

The bond involved here was furnished in compliance with the terms of a general ordinance, providing that whenever a franchise ordinance is passed, the grantee in accepting the same shall give a bond conditioned for the construction and equipment of said railroad within such times as shall be prescribed in the granting ordinance and to save the city harmless from any and all claims for damages or otherwise, growing out of the construction of said railroad.

In thus providing by general ordinance for the kind of bond to be given whenever a franchise ordinance might be granted, the council must have intended to provide for the giving of secu,rity to protect the city against such damages as it might suffer on account of the failure of the grantee to do the things required of it. The rights to be granted after the passage of the general ordinance containing the requirement as to giving of bond, might be of great value, or of small value. The franchises might be of short or of long duration; they might confer rights in a single street, or a part thereof, or on every street in the city. It is hardly to be presumed that the purpose of requiring the bond was to provide a uniform sum as liquidated damages which might be collected by the city for the failure of the grantee under any franchise ordinance that might be passed to do the things stipulated in the ordinance, regardless of their importance to the city regardless of the actual loss sustained by it. Nevada Co. v. Hicks, 38 Ark., 557.

It is to be noticed, also, that ordinance No. 1425 requires certain trades to be built on or before August 1, 1908; other tracks are required to be built on or before December 1, 1908; while no time is specified as to when the tracks shall be completed on other streets. The bond secures the building of the various tracks within the time required. It also stipulates for the construction of tracks as provided by ordinance No. 1368, of the city of Elyria, which, in general, controls the manner of construction and material to be used. The bond also provides for the protection of the city of Elyria against damage claims growing out of the construction and reconstruction of the railroad company’s tracks.

There being thus a number of different things of varying importance covered by the condition of the bond, it is our opinion that the sum named therein should be considered as a penalty and not as liquidated damages. The principle which we believe should control here is stated in East Moline Co. v. Weir Plow Co., 95 Fed. 250 [37 C. C. A. 62], in the following language:

“Where a contract contains a large number of stipulations to be performed, of varying degrees of importance, and for the breach of some of which the damages are readily ascertainable, while as to others they are not, a single sum stipulated as damages for a breach, and applicable alike to each of the covenants, will be treated as a penalty, and in an action for a breach only the actual damages proved are recoverable.”

For the reasons indicated we hold that the trial court committed no error in rendering judgment for the defendants and the judgment is affirmed.

Marvin and Winch, JJ., concur.


text:
    ACTION — ARBITRATION AND AWARD — TRIAL
    [Cuyahoga (8th) Circuit Court,
    June 24, 1912.]
    Niman, Metcalfe and Pollock, JJ.
    -Judges Metcalfe and Pollock of Seventh Circuit Sitting in Place of Judges Marvin and Winch.
    George H. Foster v. Frank C. Hartman.
    1. Prayer for Equitable Relief in Action for Money Only.
    The fact that the prayer of a petition prays for equitable relief does not change the character of an action, when the facts set forth state an action for money only, as in an action for the amount awarded by an arbitrator.
    2. Failure of Precipe to State Amount Claimed not Material.
    When the defendant answers and an action is tried on its merits, it is not material that plaintiff failed to state- in his precipe the amount of money claimed.
    3. Award when Several Partners Involved, Capable of Division, may be Enforced or Rejected in Part.
    When several partners have submitted differences to arbitration and the award made is of such a nature as to be capable of division or separation, it may be enforced as to certain partners and rejected as to others.
    4. Decision of Arbitrator Only Impeachable for Fraud.
    The decision of an arbitrator, when a dispute has been fairly submitted to him, is final, and, in the absence of fraud or such manifest mistake as naturally works a fraud, it is binding upon the parties.
    Error.
   NIMAN, J.

The plaintiff in error seeks by this proceeding to reverse a judgment rendered against him in the court of common pleas in favor of the defendant in error. No bill of exceptions has been filed and on the hearing a motion was made by the defendant in error to dismiss the petition in error for the reason that the questions raised could not be passed upon without a bill of exceptions.

The errors complained of, however, are such as may be considered by an inspection of the pleadings and the record of the cause, as disclosed by the transcript of the docket and journal entries before us.

From the pleadings, the following state of facts appear :

On June 15, 1906, G-. II. Foster and E. J. Foster, defendants below, and Frank C. Hartman, plaintiff below, entered into a co-partnership agreement for the practice of law. The partnership continued until July 81, 1909, when the firm was dissolved by mutual consent. Thereafter differences arose between the former partners concerning the settlement of the financial affairs of the firm, which resulted in an agreement between them to submit the matters in dispute to arbitration. The written agreement to arbitrate, after reciting that differences had arisen between the former members of the firm, and that such differences could not be settled between them, provided that they should submit their differences to Sam. M. Parks, and all checks, book accounts, ledgers, receipts, vouchers, and the partnership agreement, and such other matters of evidence that either party might desire to submit, should be placed in his hands upon the signing of the agreement.

The arbitration agreement further provided that the finding of the arbitration should be final and whatever was found to be ■due from one to the other should be paid in cash.

The arbitrator heard the matters submitted to him, and, in his award, found that George H. Foster should account for and pay to Frank C. Hartman the sum of $848.02, and that E. J. Foster was indebted to the said Frank O. Hartman in the sum of $576.95.

These sums due to Frank C. Hartman were not paid. The action, out of which this proceeding in error arises, was begun in the court of common pleas by said F. C. Hartman against the said George H. Foster and E. J. Foster. The plaintiff in his amended petition sets forth the partnership agreement, the submission of the differences between the plaintiff and defendants to arbitration, and the award made by the arbitrator.

The prayer of the petition, in so far as it needs to be noticed here, is:

“That the court confirm the finding of said arbitrator and grant such other and further relief as the plaintiff may be entitled to receive.”

The defendants answered to the amended petition, and the plaintiff replied thereto. Upon the trial of the case, no jury was demanded by either party and the cause was heard to the court. Judgment was rendered for the plaintiff against the defendant, George H. Foster, in sum of $848.02, with interest from October 10, 1910, but the court found that no evidence was offered or submited to the arbitrator upon any controversy between the defendant, E. J. Foster, and the other parties to the agreement of arbitration, or either of them, and that the finding as to said defendant, E. J. Foster, was null and void, and the same was vacated and set aside..

The first claim of error relied upon by the plaintiff in error for a reversal is that: The amended petition states no facts entitling the plaintiff to equitable relief asked for by him and that the court was without power to render a judgment for money only thereunder.

The action being founded upon the failure of the defendants to pay the respective amounts awarded against them under an agreement of arbitration, was in effect an action for the recovery of damages for breach of contract and was therefore an action at law and not an equitable action.

The prayer of the amended petition is one appropriate to a petition seeking equitable relief, but it has been held repeatedly that the prayer of a petition does not determine the nature of the relief to which the plaintiff is entitled. If the facts pleaded constitute an action at law, the nature of the action is not changed by reason of the fact that the prayer is for equitable relief, and, in this ease, the amended petition is sufficient to sustain a judgment rendered in favor of the plaintiff, unless the failure of the plaintiff to state the amount of his claim in the prayer of his amended petition and his failure to state the amount sought to be recovered in the precipe, invalidates such judgment.

The provision of the statute, See. 11281 G. C., is:

“When the action is for the recovery of money only, there must be indorsed on the writ the amount stated In the precipe, for which, with interest, judgment will be taken if the defendant fails to answer. If the defendant fails to appear, judgment shall not be rendered for a larger amount, and the costs. ’ ’

This provision of the statute can have no application when the defendant answers, and the action is tried on the merits. In such a case, the defendant can not possibly be prejudiced in any Avay by the non-compliance of the plaintiff with the statute referred to.

A second ground of error is based upon the. fact that the trial court rendered judgment against the defendant, G. TI. Foster, and dismissed the cause as to the defendant, E. J. Foster.

It is contended for the plaintiff in error that the award of an arbitrator is an entirety, and that it must all stand or all fall. We conceive it to be the law, however, that if the award is of such a nature as to be capable of division or separation, the principle contended for is not applicable.

In Morse, Arbitration and Award" p. 453, it is stated:

“Since the days of King James the First, the characteristic of divisibility has been recognized as inherent in the aAvard under certain circumstances. An award may often be good in part and bad in part. In such event, if the good portion be complete in itself, and be wholly separable from and independent of the bad part, it may be sustained. The bad part will be rejected. It will not be actually stricken out; but it Avill be simply set aside and disregarded. ’ ’

Again, the author of the work above cited says, on page 478:

‘ ‘ Though it is not allowed to go outside the award to establish the propriety of separation, yet, in construing the award itself, it appears that the doctrine of favorable intendment in support of the award will be carried so far that, if an award be bad in part and good in part, it will be presumed that there is no connection between these parts unless the contrary is to be affirmatively gathered from the face of the award. ’ ’

In the award in the ease before us, there was a separate finding against each of the defendants. There is no apparent and no necessary connection between them.- The finding against E. J. Foster may be rejected and still leave the finding against G. H. Foster undisturbed. The two findings are separable and the ground of error contended for is not well founded.

A third ground of error is claimed to exist because it is asserted the arbitrator did not confine himself to the matters submitted, but took into account, in arriving at his award, the salary of G. H. Foster as a member of the Soldiers and Sailors Relief Fund Committee.

In the report of the arbitrator, attached to the amended petition, it appears that the arbitrator charged the said George H. Foster with certain amounts received by him as salary as a member of the Soldiers and Sailors Relief Fund Committee. It is a well established principle of law that the award of an arbitrator must correspond to the submission; but it does not appear from the award under consideration that this principle of law has been violated. It must be presumed that the arbitrator took the salary of George H. Foster, as a member of the Soldiers and Sailors Relief Fund Committee, into consideration because of some evidence submitted to him. He was made the final judge of all matters of fact and law, relating to matters in dispute between the parties to the agreement. We therefore hold that this claim of error is not well founded.

A fourth ground of error is based on the failure of the arbitrator to make any finding as to the state of matters between E. J. Foster and George H. Foster.

As this is a proceeding in which Frank C. Hartman seeks to recover from George H. Foster the amount awarded by the arbitrator, it would seem to be of no importance whether the arbitrator considered the state of the partnership account between George H. Foster and E. J. Foster, or not. Being a judge of the law and the facts under the arbitration agreement, the arbitrator found a certain sum due the plaintiff from the defendant, George H. Foster, and the fact that the arbitrator made no finding as between the two Fosters does not in any way impeach the finding made in favor of Mr. Hartman.

The argument is also made that, since the articles of partnership established certain mathematical apportionments by which profits were to be divided between the parties to the agreement, E. J. Foster could not be let out and another member be left, on which to base a finding against George H. Foster.

The answer to this is that, whatever the method the arbitrator employed in arriving at his award, his decision is final, and in the absence of fraud or such manifest mistake as naturally works a fraud, it is binding upon the parties and entitles the succesful party to judgment thereon. Corrigan v. Rockefeller, 67 Ohio St. 354 [66 N. E. 95],

We find no error prejudicial to the plaintiff in error and the judgment is affirmed.

Metcalfe and Pollock, JJ., concur.


author: MAEVIN, J.

text:
    ASSESSMENTS — DAMAGES
    [Summit (8th) Circuit Court,
    October 4, 1912.]
    Marvin, Winch and Niman, JJ.
    Mary E. Hurst v. Akron (City)
    1. Damages Directly Accruing from Street Improvement only Considered.
    In an action under Sec. 3828 G. C., providing for the assessment of damages to property owners occasioned by the improvement of a street, only damages which would result from the improvement as actually authorized by the council can be considered.
    2. Reasonable and Proper Grade of Street Basis of Damages Allowable.
    When the owner of property, abutting upon a street upon which a grade has not been established, builds upon the property without reference to any reasonable or proper grade of the street which the city may thereafter establish, he is not thereby precluded from recovering damages resulting to his property from the establishment of an unreasonable and improper grade of the street; and the measure of his damages in such case will be the difference between damages which would have resulted to his property from the establishment of a reasonable and proper grade and that resulting from the grade as actually established.
    3. Damages for Change of Grade Attach to Vacant Lots Adjoining Homestead.
    When an owner uses three adjoining lots in one inelosure as a homestead, he is entitled to damages to all of them caused by the establishment of an unwarranted and unreasonable grade of the street, even though there are no buildings upon two of the lots.
    Error.

      Otis, Beery <& Otis, for plaintiff in error.

      Jonathan Taylor, for defendant in error.
   MAEVIN, J.

The relation of the parties here is the reverse of the relation in which they stood in the court below. The terms “plaintiff” and ‘1 defendant, ’ ’ as used in this opinion, will refer to the parties as they stood in the court below.

Tbe city bad improved Frederick street, upon which certain premises of tbe defendant abutted, and brought its proceeding in tbe court of common pleas to have tbe damages of tbe several property owners, who bad made claims for damages by reason of tbe improvement, assessed by a jury. Tbe result was a verdict and judgment for tbe plaintiff below to tbe effect that tbe defendant was entitled to no damages.

Tbe defendant insists that there was error upon tbe trial, first, because the court refused to permit evidence to go to tbe jury tending to show that the improvement of tbe street, which consisted in cutting down by grading tbe street in front of tbe defendant’s premises, as actually made, made a cut of about one foot below the grade which bad been established by tbe city council.

There was no error in tbe ruling on this question.

By section 3823 G. C., it is provided that after tbe city has enacted proper legislation, and given tbe proper notice, tbe owners of tbe lands abutting upon tbe improvement claiming they will sustain damage by reason of tbe improvement, must serve a notice with the city clerk, setting forth tbe amount of damages they claim, etc.

It is provided also by Sec. 3824 that upon tbe expiration of tbe time limited for tbe filing of claims for damages. Tbe council shall determine ivhether it will proceed with the proposed improvements or not, and whether the claims for damages so filed shall be judicially inquired into before tbe commencement or after the completion of tbe proposed improvement.

Section 3827 provides what shall be done to bring tbe matter into court, where it is determined to have tbe damages assessed before tbe making of tbe improvement.

It provides that this may be done either in tbe probate court or tbe court of common pleas, or' before a judge thereof, and then it is provided “that tbe court or judge shall direct tbe summoning of a jury in tbe maimer- provided for tbe appropriation of property, and fix tbe time and place for tbe inquiry and tbe assessment of such damages, which inquiry and assessment shall be confined to such claims.”

By Sec. 3828 it is provided that “the jury shall be sworn to inquire into and assess the actual damages in each case, separately, under such rules and instructions as shall be given it by the court. ’ ’

In Sec. 3829 it is provided that—

“When the council determines to assess the damages after the completion of an improvement provided for by this chapter, for which a claim for damages has been filed as herein provided, the mayor or solicitor shall, within ten days after the completion of such improvement, make written application to the court of common pleas, or a judge thereof in vacation, or to the probate court of the county in which the corporation or the larger part thereof is situated, to summon a jury in the manner provided in this division for the appropriation of property, to assess the amount of damages in each particular one, and such court qr judge shall fix the time and place for inquiry, and the assessment of damages, in the manner hereinbefore provided.”

These words “in the manner hereinbefore provided,” clearly show that so far as the assessment of damages is concerned, the rule will be exactly the same whether the inquiry is made before the improvement is made or after, and the same oath must be administered to the jury whether the assesment be made before or after the. improvement is made.

As already pointed out, that oath, which is provided for in Sec. 3828, is that the jury shall inquire into and assess the actual damages in each case separately, etc.

These sections clearly provide for the assessment of damages to the several property owners who shall file claims for damages on account of a single improvement, and they provide that the damages to be assessed are the damages which resulted in the one case, and which will result in the other, from the improvement of the street, as provided by the legislation of the council. The inquiry is to be the same, and the oath administered the same, whether the inquiry be before or after the improvement; and the inquiry is to be as to the right of the party to damages and the amount of such damages under the claim which he has filed with the city clerk.

It is clear that the claim filed with the city clerk must be a claim for only such damages as will result from the improvement of the street, in the manner fixed by the legislation of the council for these claims are to be fixed before any jury can be called or anything done in the way of assessment of damages.

The court, then, was clearly right in limiting the inquiry to the damages resulting from the improvement of the street in accordance with the grade established by the ordinance of the council. And so the court was right in excluding evidence as to any damages suffered by the plaintiff by reason of the grade having been below the point fixed by the ordinance.

It is again complained of as error, that the court refused to admit evidence from experts (engineers) as to the opinion of the witnesses as to the reasonableness of the grade.

In this there was no error. Expert testimony is admitted upon questions of science and art and the like, because the expert, from the nature of his calling, is better able to judge than one not an expert, even though the latter has the facts from which to judge. It is upon this principle that engineers, physicians, surgeons and other men having peculiar knowledge of the particular matter in question, are permitted to give opinions. But an expert, whether he be an engineer, or what not, is no more capable of judging whether the grade of a certain street is reasonable or unreasonable, than any other sensible man who has all the facts upon which an opinion is to be founded. One not an expert knows as well as an expert whether a certain street is so steep as to be unreasonable, when he knows the topography of the vicinity, knows the use to which the street is to be put, knows the kind of loads that are likely to be hauled up or down it, and the other facts which are to be taken into the account. We know of no ease that would authorize the receiving of such evidence as it was here proposed to give.

Another question which is raised on the evidence, is as to the question asked of Mr. William T. Sawyer. Mr. Sawyer either was, at the time of the trial, or had been, the mayor of Akron, and therefore a man whose opinion would be likely to have weight with a jury. He lived in the neighborhood of this improvement, though he had no acquaintance with the husband of the pla.i-nt.iff; but when the husband of the plaintiff was on the stand, he was asked, in cross-examination, if he had not had a talk with Mr. Sawyer at the time he was excavating for the building of the house on one of the lots of the plaintiff fronting on this street, and whether Mr. Sawyer had not said to him that he was arranging to build his house too high with reference to the street, because when the street should be improved there would be a deep cut in front of his premises, the witness had answered that he had no such talk or any other talk with Mr. Sawyer on the subject. Mr. Sawyer was then called by the city, and was asked if he had not said these words to the defendant’s husband which the husband had denied. Over the objection of the husband Mr. Sawyer was permitted to answer, and did answer, that he had said to the defendant’s husband what the husband had denied that he had said to him.

The court said to the jury that this testimony of Sawyer was admitted only as bearing upon the credibility of the witness, the. plaintiff’s husband.

If this was the only ground upon which it could be admitted, we think its admission was clearly erroneous. If it was wholly immaterial as bearing upon the real issues in the ease whether such talk had been had, then the plaintiff was not entitled, as bearing upon the credibility of the witness, the husband, to allow Sawyer to contradict him. Where a question is asked in cross-examination upon an immaterial question, it is not permissible, for the purpose of impeaching the witness, to show that what he said about it was not true. We believe there is no conflict of the authorities on this question.

Suppose that this husband while on the stand as a witness, had been asked if he did not once live in the city of Massillon, and he had answered “no;” and suppose further that it had been wholly immaterial whether he ever lived in the city of Massillon or not, it is conceivable that his credibility may be affected in this case by bringing somebody in from Massillon to testify that he once did live there? Unless, then, the talk which Sawyer says he had with him in some way bore upon a question involved in the case, and we can not conceive of but one question upon which it could bear at all, and that would be whether the plaintiff exercised reasonable judgment in selecting the place to build his house (assuming that in the building he was acting as the agent of his wife), this question was wholly immaterial.

Sawyer’s answer showed that Sawyer’s judgment was that the house was not being built with reference to a future probable grade of the street, and while we might hesitate about reversing the ease because of the admission of this testimony of Sawyer, I personally feel clear that it ought not to have been admitted, and my only doubt is as to whether it was calculated to prejudice the rights of the defendant, and it seems to me that it might well do so in view of the prominence of Mr. Sawyer in the community. However, as we have reached the conclusion that the judgment is to be reversed for other errors, to which attention will be called, nothing more will be said of this, except that it is to be hoped, if the case is ever tried again, that this question will not arise.

But the most serious question in the case, as we view it, arises upon the charge of the court. The court said in his charge:

“It is admitted in this ease that when Mary B. Hurst improved Lot 31 by building a house thereon, there was no grade established on Frederick street in front of said lot. She was therefore bound in law, in making her improvement, to anticipate the city might at any time establish a reasonable grade in front of her premises, and improve the street accordingly. She was bound to anticipate a future grade of the street in accordance with the future wants of the public, and the city is not liable to her for any damage that the improvement of said street caused to her property, unless she exercised reasonable care and judgment in erecting her house with a view to a reasonable and proper grade, and unless the grade afterwards established was not a reasonable and proper grade, taking into consideration the topography of the territory through which the street passed, the grade of connecting streets, the character and amount of travel upon the street and the probable requirements of the future in that regard, the important consideration being the necessities and convenience of public travel.”

In this we think the court erred. It required more of the defendant than the law requires. The court had in mind, in giving the charge, the case of Crawford v. Delaware, 7 Ohio St. 460, and the case of Akron v. Chamberlain Co. 34 Ohio St. 328 [32 Am. Rep. 367].

In the first of these cases, the second paragraph of the syllabus reads:

“The owners of lots upon a street, the grade of which has not been established, must use reasonable care and judgment in making improvements, with a view to a reasonable and proper grade; and the town or city will not be responsible for injuries to such improvements by afterward grading the street, if the grade, by ordinary care, could have been anticipated. ’ ’

Clearly, the meaning of this is that any grade which should be made of the street after the improvements were made upon the property, which, by the exercise of ‘ ‘ ordinary care could have been anticipated,” would be a reasonable and proper grade, and, therefore, the property owner being bound to anticipate any reasonable and proper grade which should thereafter be made on the street, would not be able to recover damages because of such reasonable .and proper grade. It was not meant to say that although the owner was bound to anticipate a future and proper grade of the street, that even where there had been a failure to so anticipate, still the property owner could not recover for an unreasonable and improper grade, if he had suffered thereby.

In the case of Akron v. Chamberlain Co., supra, the second paragraph of the syllabus reads:

“The liability of a municipality for injury to buildings on abutting lots exists only where such buildings were erected with reference to a grade actually established, either by ordinance or such improvement of the street as fairly indicated that the grade was permanent^ fixed, and the damage resulted from a change of such grade, or where the buildings, if erected before a grade was so established, were injured b3>' a subsequent establishment of an unreasonable grade.”

Under this, as well, as under the case of Crawford v. Delaware, supra, it is clear that damages can not be recovered by a property owner against a municipality where the grade finally established by the municipality was a reasonable and proper one, such as a reasonably prudent man should have anticipated, provided the improvements which the owner put upon the property, were made before any grade was established. But it does not follow that one who improves his lands in such wise that a future reasonable and proper grade would result in damage to his property, is absolutely prohibited from recovery where the future grade is unreasonable. Probably the damages to which an owner in the case last stated would be entitled would be the difference between what he would have suffered if the grade, finally established, had been reasonable and proper, and the injury which came to him by reason of the unreasonable and improper grade.

To illustrate:

Suppose that a property owner makes improvements upon his property where no grade is established.

A reasonable and proper grade, one which an ordinarily prudent man should have anticipated, would cut down the street in front of his property anywhere from seven to ten feet, because there may be more than one grade that could be established that would be reasonable and proper, and so, as already said, the owner making the improvements upon a property should have anticipated that the street would be cut from seven to ten feet, but he made his improvement on his property without reference to such future reasonable grade. It is clear that if a grade had thereafter been established which should make the cut from seven to ten feet, the owner would be entitled to no damages, because he was bound to have anticipated.

But, suppose that the street is graded in such wise that there is a cut in front of his premises of twenty-five feet, fifteen feet of which cut is unreasonable and improper. Is he to be deprived of his damages because he did not build with reference to the future cut of from seven to ten feet? And yet, if the charge of the court in this case was right, the owner making the mistake of failing to exercise proper judgment in anticipation of a future reasonable grade, is absolutely cut off from recovery of any damages, however unreasonable and improper the grade is.

We think this is not the law; that it ought not to be the law, and it is not to be gathered from these two cases, when properly considered.

Another question in the case is whether the right to recover existed at all for injury to the two lots which the defendant owned, the one being on the right hand and the other on the left hand of the house which was built on the middle lot of the three; the three were in one enclosure and, together with the house, constituted the home of the defendant.

There was evidence tending to show that though there was no building on either of the lots other than the middle one, there were flowers planted, a lawn made and the lots graded in such wise as to properly constitute, when taken with the homestead lot, a single homestead property.

The fact that these lots were purchased after the house was built, which they were, does not, as we view it, affect this question. If the plaintiff was entitled to recover at all under a proper charge, it is not certain that she was not entitled to recover as well for injuries to the lots on either side of her house as for injuries to the lot on which the house stood.

For error in the charge, the case is reversed and remanded to the court of common pleas.

Winch and Niman, JJ., concur.