text:
    PROCEEDINGS WHERE A VOIDABDE RELEASE HAS BEEN GIVEN FOR PERSONAL INJURIES.
    Circuit Court of Lucas County.
    The Toledo & Ohio Central Railway Company v. Harry M. Coleman.

    Decided, July 3, 1908.

      Claims for Personal Injuries — Releases which are Void and which are Voidable — ■Consideration for Release — Pleading Release in Reply by Way of Avoidance — Procedure for Cancellation of Release.-

    1. Where, in an action for damages resulting from injuries alleged to have been sustained through the negligence of the defendant, the answer sets forth as a defense that the plaintiff in writing released the defendant from all claims resulting from such alleged negligence, and the reply sets forth facts which, if established, would render such release voidable, and further fact which, if established, would render such release void, and there is evidence tending to establish the facts which might render the release voidable only, but no evidence tending to establish the facts necessary to be established to render the release void, it is the duty of the court, on motion of the defendant, to instruct the jury to return a verdict for the defendant.
    2. One dollar is sufficient consideration, in law, to sustain such release.
    3. Facts that, if established, would render the release void, may be pleaded in the reply by way of avoidance of the defense of release; but if the facts would render the release voidable only, and not void, the plaintiff can not avail himself thereof by way of reply.
    4. If the release is voidable only and not void, the plaintiff can not maintain his action while it stands uncaneeled, and he can not seek its cancellation in a reply but must do so by petition in a suit in equity for that purpose only, or as a cause of action in the same suit in which he seeks to recover damages for the injury (following Perry v. The M. O’Neil & Co., 78 Ohio St., 200).
    Parker, J.; Wildman, J., and Kinkade, J., concur.

       Affirmed by the Supreme Court without opinion, Coleman v. T. & O. C. Ry. Co., 81 Ohio St., -.

   Harry Coleman recovered .a judgment in the court of common pleas against the plaintiff in error on account of injuries received to liis eye, through, the bursting of a water glass, part of a-steam gauge of an engine, while he was in the employ of and was in the line of his duty .as locomotive fireman; many interesting questions have been presented and argued; but I shall discuss but one.

By way of defense to the action the railway company pleaded a release given by Coleman to the company, signed by him and dated the 9th of August, 1902. This- release seems to have reference to this particular injury, but subsequently on three other occasions Mr. Coleman received other injuries which appear to have been slight, and he executed like releases with respect to those injuries. Each of these releases contained a general clause releasing the company from all claims for damages up to date, and then each mentions specifically the injuries that had immediately preceded the release.

This release of August 9th reads as follows:

“Whereas, on the 7th day .of August, 1902, the undersigned, Harry M. Coleman, while in the employ of the Toledo & Ohio Central Railway Company as fireman received certain injuries as follows, to-wit: hit in right eye by piece broken water glass while in said employment at or near Horton station in the state of Ohio; and
“Whereas, the said Harry M. Coleman does not make any claim of any class or character against said company, .for or on account of said injuries, and admits that the same are not the result of any negligence on the part of said company,
“Notv, Therefore, in consideration of the sum of one dollar ($1.00) in hand paid, and the further consideration of my reemployment by said the Toledo & Ohio Central Railway Company, for such time only as may be satisfactory to the company, said railway company is hereby released from any and all claims that I, said Harry M. Coleman, claimant herein, ever had or might have against said company, up to date and especially released from any and all other claims arising out of injuries specially set forth herein.
“Given under my hand and seal at Toledo, Ohio, this 9th day of August, 1902.”

And following that is a receipt for -the one dollar mentioned in the foregoing agreement and that is signed by Harry M. Coleman and witnessed by IT. P. Latta and G. D. Lewis.

What the plaintiff says by way of reply I can hardly state more succinctly than to read it:

’ “Now comes plaintiff and for reply to the amended answer filed herein, says that'it is not true that on the 9th day of August, 1902, or at any other time, plaintiff entered into an agreement by the terms of which he released the defendant for injuries which he suffered as set forth in his petition.
“Plaintiff alleges that on the said 9th day of August, 1902, the plaintiff was still in the employ of the defendant company and that he had not in any way applied for re-employment by said company, and was not re-employed by said company. That at said time he was temporarily off duty because of the injuries which he received by the bursting of the water glass as set forth in his petition.
“Plaintiff says that, on or about the 9th day of August, 1902, he was suffering a great deal of pain from the injuries which he received in his right eye, and that said eye was in such condition that he could not use the same, and that his left eye was very much impaired by reason of the injuries to his right eye. That by reason thereof he was unable to read. That on or about the said day, he was at the office of the defendant company in the presence of one Latta, who was in charge of the defendant’s round-house, and the superior over plaintiff. That the said Latta ■placed before plaintiff a paper containing some printed and written matter, which plaintiff now is informed and believes and therefore avers is the paper referred to in said answer and bearing date of August 9, 1902. That at said time said Latta requested plaintiff to affix his signature to said papér in one or more places, and at the time told plaintiff it was a mere formality required by the defendant in all cases wherein a person had met with an injury and did not affect any claim he had against said company. That at said time plaintiff was unable to read said paper, and that the said Latta and no other person read the same to him or made the contents of the same kown to plaintiff, but the said Latta told plaintiff that the same was of no importance, and was” a mere formality. That plaintiff relied upon the said statement and affixed his signature as best he could to said paper at the request of the said Latta. That all of the foregoing was well known to said Latta.”

There is more of said reply upon the same subject and of the same tenor, but the substance of it is contained in the paragraphs I have read. There are other averments to the effect that he did not receive tbe dollar, and that the matter of settling his claim was not discussed and was not considered, and that no ideh of that sort was entertained by himself or by the representative of the railroad company, and more to the same effect.

If what I have read were established it would appear that the release was absolutely void. If it were true that Coleman at the time was unable to read by reason of these injuries to his eye, and if he was deceived by Mr. Latta, his superior in the employ of the company, as to the contents of the paper, if he signed the paper under such circumstances, supposing it to be one thing, whereas it was an entirely different thing, that is to say, a mere matter of form that he must sign before he began work again, whereas it was a release of all his .claims against the company, if his signature to the release was obtained under such circumstances and by such method, the release would be absolutely void; and under the authorities, this issue of release might be raised by a reply setting forth the facts showing that the release was void.

On the other hand, if the circumstances were such as to make the release simply voidable in law and not void; if the circumstances were such that a court of equity alone could give relief, then the matter could be properly pleaded in a reply; but it would be necessary, before the plaintiff could maintain his suit, for him to get rid of the release by instituting proper proceedings in equity to have it canceled and set aside. That might be done in a separate and distinct cause of action in the same ease as the one wherein he prosecuted his claim for damages, or by suit brought for that purpose only.

As we have said, in this reply, besides the matter pleaded, which, if true, would make the release void, there is much else which, if established, would render the’’ release voidable and would authorize a court of equity to cancel it.

It will be observed that the plaintiff, by bringing this issue into the case by reply, undertook to establish that the release was void.

Now, to go through the record in this case and call attention to all of the testimony bearing upon this issue would take a great deal of time and would not be profitable. I may say, however, generally, that after a careful examination of the record,. we are unanimously of the opinion that there is in it no ev.dence tending to establish the allegations required• to be established to render this release void. The evidence does not establish that the plaintiff at the time he signed this release was unable to read; that his eyes were so affected by the injury that he was unable to read, though it appears that his eyes were somewhat affected, and perhaps he could not have read at that time as easily as ordinarily. It does not appear that Mr. Latta stated to the plaintiff that this release was a mere formality, or that it did not affect .any claim that he had against the company. In plaintiff’s interview with Mr. Latta there was nothing said upon that subject, or to the effect that it was of no importance and a mere formality:

On the contrary it appears that Mr. Latta was a friend of the plaintiff’s, and that he treated him with entire fairness and candor on this occasion. There was no fraud practiced upon the plaintiff. Had he eared to acquaint himself with the contents of the paper he had full opportunity to do so. It seems quite apparent that he knew substantially what was in the paper.

He received one dollar for the release. It is said that the consideration of one dollar is merely nominal, and that it must be apparent that the plaintiff would not release a substantial claim against the company for a consideration of one dollar. In law, a consideration of one dollar is a valuable consideration, and to fulfill the requirement that a contract shall be supported by a consideration it is as good as a thousand dollars or any other sum. Of course there are circumstances, especially in equity, where the amount or value of the consideration will have weight but it can not be said that this release was void at latu because wholly unsupported by a consideration.

The fact is that the plaintiff, after having his eyes injured as we have stated, laid off for a time and had his eyes treated, and when he came back to the company to “sign up” as they call it, he supposed that his injuries were substantially over with and cured. He did not then appreciate or apprehend that he had received the serious and permanent injuries that he now claims he had in fact sustained. And it was therefore, no doubt, that the matter of signing this release for the consideration of one dollar was regarded by him, as it was by Mr. Latta, as somewhat in the nature of a formality and a matter not involving serious consequences.

It is true, and it very apparent from this record, that they did not consider, upon either side, the question of settling for the alleged serious injury that it is said had really been sustained by the plaintiff. But it was known by both that the plaintiff had sustained some injury to his eyes, and that it was with respect to those injuries that the dollar was paid and the release given.

Whether the circumstances were such as that the release should be set aside by a court of equity because of inadequacy of consideration, or because of ignorance of the parties of the true situation, or for any other reason, are questions that we are not now called up to consider.

That the plaintiff understood that he was signing this release is very apparent from his own testimony. He understood that he was signing a release. Several times in the course of his cross-examination when asked why he signed this paper and what he supposed he was signing, he answered in substance that he supposed he was signing off for the time he had lost; that he was releasing any claim that he might have against the company for the time he had lost. That of course had reference to the time he had lost by reason of this injury to his eye; and it is apparent that at that time he supposed that the only claim that he had against the company on account of these injuries was for loss of time for a few days — loss of wages in consequence of loss of time, and such loss at time being due to the injury to his eye. So that he knew that he was releasing the company from the only claim that he supposed he had against.the company for the injuries that he supposed he had received. Under those circumstances the release is valid in law although he discovered after-wards that he had received more serious injuries than he supposed when he signed the release, and concluded that he should have received a large compensation therefor on settlement instead of one dollar only.

Now this question has been fully considered and passed upon by the Supreme Court of Ohio in a decision recently handed down in the case of Perry v. The M. O’Neil & Co. When we had the case under consideration we had a certified transcript of the opinion of the Supreme Court, but since we decided it the case has been published. We decide the case at bar upon the authority of Perry v. The M. O’Neil & Co., 78 O. S., 200. We will not attempt to add by further comment anything to what is there said in elucidation of this subject.

At the close of all the evidence the trial court was requested by the defendant below to instruct the jury to return a verdict for the defendant in view of the fact that there was no evidence tending to support the allegations of the facts necessary to be established to render this release void. We think that instruction should have been given. As the greater includes the lesser, of course it foTows that the verdict on that issue is against the weight of the evidence also.

For these reasons the judgment of the court of common pleas will be reversed and the case will be remanded.


source: Caselaw Access Project

license: Public Domain

text:
    ALTERATIONS IN A PROMISSORY NOTE.
    Circuit Court of Hamilton County.
    Samuel Hoffman et al v. Wiedemann Brewing Company.
    Decided, January 22, 1910.

      Promissory Notes — Charge of Court with Reference to Material Issues in an Action to Enforce Payment — Error—Sections 3171m and 3175o.

    The time of maturity of a note and the manner of its payment are material parts thereof, and it is error to refuse to charge the jury with reference to these matters where they constitute issues of fact which the jury must determine.

      B. C. Fox, for plaintiff in error.

      W. C. Taylor, contra.

      Smith, J.; Giffen, P. J., and Swing, J., concur.
   The court is of the opinion that the judgment of the trial court in the .above case should be reversed.

We see no objection to the admission in evidence of the note sued on, nor do we find any error in the trial court giving the special charge asked by defendant in error.

The sole question of fact being one of alteration of the promissory note sued upon, we think there was error in not giving to the jury the two special charges asked by the plaintiffs in error, one of which related to the time after the date of the note when it became due, and the other to the insertion in the note by the defendant in error, the words, “payable ten dollars per week.”

We do not think these questions were properly submitted to the jury in the general charge of the court. As we have already said, they raised the question of fact as to alteration, and under Sections 3171m and 3175o, the jury were called upon to determine this from the evidence under proper instructions. The date borne by a promissory note has been held to be a material part thereof (Newman v. King, 54 O. S., 273), and we see no reason why the time of maturity of a note, or the manner of its payment is not also a material part thereof. If this is true, then it was simply a question of fact to be determined by the jury whether or not the alterations made in this respect were made by the agreement of the parties or not, and we think the trial court upon this question did not properly charge the jury as set out in the general charge.

For these reasons the judgment of the court below will be reversed.


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    AS TO THE TERM OF A GAS AND OIL CONTRACT.
    Circuit Court of Wood County.
    North Western Ohio Natural Gas Co. v. Isaac Whitacre et al.
    Decided, October 28, 1892.

      Gas and Oil — Construction of Contract for Drilling and Operating Wells — Term of Contract for Producing Wells Not Extended by Payments of Rental on Non-Producing Well — Right of Lessee to Terminate the Agreement.

    A contract granting the exclusive right to drill and operate gas and oil wells for the term of three years from the date thereof and as much longer as oil and gas are found in paying quantities, in consideration for which the operators were to pay a royalty on the oil produced and $300 per well for gas, and in case no well be drilled within the first six months then a stipulated rental per year, terminates upon the expiration of three years, unless oil or gas is produced in paying quantities. Payment of yearly rental and tender of $300 per year for a non-producing gas well will not effect an extension of its terms; neither will a separate agreement upon consideration three years and eight months after the date of the contract, granting an extension to a fixed date more than a year in the future, the terms of which are endorsed on the original agreements, continue the original contract in force beyond such fixed date, especially since no new or further efforts were made' to develop oil or gas on the premises.
    Bentley, J.; Scribner, J., and Haynes, J., concur.
   This case has been submitted to us upon the pleadings and the testimony. The action was brought by the plaintiff, the gas company, to enjoin the principal defendant, Priddy, from drilling wells on a certain farm of Isaac Whitacre for the purpose of obtaining gas or oil; the gas company claiming that, by a»prior grant to one Vandergrift, Mr. Whitacre had granted the -exclusive right to bore for gas and oil upon his farm and that that right by assignment had come to the plaintiff, the gas company.

It will be necessary to consider briefly the contract upon which the plaintiff relies. The contract was made July 16, 1886, between Isaac Whitacre of the first part and T. J. Vandergrift of the second part, and I will read certain of the paragraphs which will bear upon the discussion arising in this action. The contract reads:

“That the said party of the first part for the consideration of the covenants and agreements hereinafter mentioned, has granted, demised and let unto the party of the second part, his heirs or assigns, for the purpose and with the exclusive right of drilling and operating for petroleum and gas all that certain tract of land situated in Bloom township, Wood county, Ohio.” [And here follows a description of the land, containing seventy-two acres be the same more or less, together with the right to use sufficient water therefrom necessary to the operation thereof.]
“The right-of-way over said premises, thé right to lay pipes to convey oil and gas, and the right to move any machinery or fixtures placed on said premises by the party of the second part.
“The party of the second part, his heirs or assigns, are to have and to hold the said premises for and during the term of three years from the date thereof and as much longer as oil or gas 'is produced or found in paying quantities thereon.
“In consideration of said grant the said party of the second part agrees to give or pay to the said party of the first part, the full equal one-eighth part of all the petroleum or rock oil produced or found on said premises, and to deliver the same free of expense into tanks or pipe lines to the credit of the party of the first part, and should gas be found in sufficient quantities to justify marketing the same, the consideration in full to the party of the first part -shall be $300 pe.r annum for the gas from each well so long as it shall be sold therefrom.
“It is further agreed that -the party of the second part shall complete a wed on the above described premises within six months from the date hereof, and in case of failure to complete such well within such time, the party of the second part agrees to pay to the party of the first part for such delay, a yearly rental of $1 per acre on the premises herein leased from the time of completing such well as above specified until such well be completed, the said yearly rental amounting to $72 shall be deposited to the credit of the party of the first part in the Farmer’s National Bank of Findlay, Ohio, or be paid direct to.said first party. And a failure to complete such a well or to make such deposit or payment as above mentioned shall render this lease null and void and to remain without effect between the parties hereto.”

There are certain other clauses in the contract which are not necessary to the understanding and disposition of the case here.

This well which the lease provides should be completed within six months or a payment made, was not completed within the six months, but before the six months expired the alternative was acted upon, the $72 rental was paid to Mr. Whitacre, that being paid in January, 1887, and before the six months had expired. A well, however, was completed upon the premises about May, 1887, before a year from the date of the lease had expired. When that well was ‘ ‘ drilled in, ’ ’ as the saying is, it seemed to furnish quite a quantity of gas, but with the gas a small quantity of oil so as to practically destroy the utility of the gas. The gas however was turned into the company’s gas line a few hours one evening when an illumination was being held in Toledo, and. the gas was used for that purpose a few hours and was then turned off. The gas has never been used from the well since that time.

In the fall of that year, the well was driven still deeper and produced perhaps another supply of gas — the quantity is not shown with any degree of certainty — and the well drilled still deeper until a vein of salt water was struck. That was in the fall of 1887. Shortly after, the easing was pulled out which let surface water into the well, and the gas was sufficient in the well it seems to throw the water out of the well — the water being projected in such quantities that it flooded a portion of Mr. Whit-acre’s land, and some complaint seems to have been made regarding it, and the assignees of the contract attempted to shut off the water. They attempted to shut off the salt water by a lead plug and perhaps were reasonably successful in that, but the other water being furnished in such quantities, caused some damage, it is claimed by the Whitacres,. and they attempted to shut this off by putting stones in the well and pounding them down; that seemed of no avail, so at last they put the casing back into the well. It would appear for the purpose of enabling them to shut off this water more effectually, more or less stone was put into the well to stop the flow of water, and the well has remained substantially-in that condition ever since; the gas not being used and no attempt being made to use it; the gas company left it in that way.

That substantially states the situation of this well and the operation upon that farm under this contract, until March 22, 1890. It will be noticed that this was three years and eight months after the date of the lease, the original lease being for three years with this contingency for an extension. Eight months after that definite date had -elapsed, a further arrangement was made between the parties. On the date I have last mentioned, the owner of the land, Mr. Whitaere, and the 'gas company, entered into this arrangement: the company paid him $175 for.an extension of the lease and he granted and consented to an extention in these words:

“March 27,1890. In consideration of .the sum of $175 to me in hand paid by the N. W. O. N. Gas Co., I hereby agree to the extention of the within lease for and until the first of May, 1891. Signed, Isaac Whitaere.”

The extension was written at the same time upon each of the duplicates of the contract, or upon the contract, and the copy is substantially the same, possibly with the variation of a word or two, which is not material.

Nothing was done further regarding this matter between the parties after this extension to May 1, 1891, until May 10, 1891, when the company by its agent tendered to Mr. Whitaere $300 in money for the rental for the gas mentioned in the contract, the contract providing for $300 each year for gas which should be produced and sold.-Mr. Whitaere refused this tender, claiming that the contract had expired. On July 29, 1891, Mr. Whitaere granted another contract or oil lease, covering the same premises, to the defendants, Priddy & Bro. They immediately proceeded to erect their rig and began to drill a well on the premises, until they were stopped by the commencement of this action, and an injunction obtained thereunder; the petition being filed September 15, 1891, and the injunction being served either that day, or the day following. All operations were suspended for a time, and on April 19, 1892, the plaintiff again tendered to Mr. Whitacre the $300 for the gas, as he claimed, which Mr. Whitacre again refused.

On that state of facts it is claimed by the plaintiff that this injunction should be made perpetual; on the part of the defendants that its lease had expired before the beginning of this action and that Mr. Whitacre had released the premises and had elected to treat the contract as at an end; and the answer of Mr. Whitacre as well as the answer of the Priddys asks that the Priddys’ exclusive right to drill and operate for oil and gas be adjudged to them and that their title be quieted.

Naturally the inquiry is suggested here, and the question is presented, what were the rights of the natural gas company, assuming now for the moment that it had acquired all the rights that were originally granted to T. J. Vandergrift at the time this extension was made, and before the extension was made; and then again what' rights did that extension give them!

At the time this extension was made, the well had been completed and the $72 had been paid, so the whole matter had been disposed of. There is nothing in the lease which would forfeit it for the non-completion of that well or the non-payment of the rental; the rental had been paid and the well completed. At the expiration of the three years, as the lease stated, it would seem clear that the contract and lease terminated, unless at that time there was oil or gas produced or found in such paying quantities on the premises as would extend it under the clause of the lease providing that it shall extend as much longer as oil ór gas is produced or found in paying quantities thereon.

That in fact this well produced oil or gas in paying quantities, there is no proper proof. We think it follows under the rulings of the Supreme Court in the cases of Scioto Fire Brick Co. v. Pond, 38 O. S., 65, and Cook v. Andrews, 36 O. S., 174, that if plaintiff desired to found any right upon the fact that oil or gas was produced in paying quantities, it was bound to furnish that proof, the burden of proof being upon it. So, T say, there is not furnished us proper proof that at the time of this extension the original lease did continue in force by reason of that alternative presented by the original contract; that is, the three years had expired and gas or oil not shown to be produced or found in paying quantities so as to extend the lease. Practically, under, the terms of the lease, the rights of the parties had ended at the time of this extension. But this extension so made did extend the lease until the first of May, 1891, but we think this can scarcely be said to extend the provisions of the six months’ clause of the lease, because the first well had been drilled and the rental paid to excuse it being drilled within six months. We thinly this term “first of May, 1891,” fixes the terms of the lease as being this date, and not 'three years from the original date which had been originally fixed. That the lease should be considered now as if it originally read “that it should expire by the first of May, 1891.”

It is argued, and not without force, by the defendant’s counsel, that, whereas the original contract presented one term for three years and another conditional term dependent upon the production of oil or gas in paying quantities, the parties by this extension waived all the conditional terms and should fix it so that it would expire, in May, 1891. While, as I say, that argument is not without force, yet we are inclined to think that this should stand and be considered as in place of three years, and this would extend the lease to May, 1891, and if by that time oil or gas had been produced in paying quantities, under the original terms of the lease, the right should be considered as extended as long as the gas or oil was produced in paying quant’ties upon the land. Now was it ¶

There was nothing by way of operation done at this time, May, 1891; but it is argued as perhaps the principal basis of the plaintiff’s right, that, whereas the contract was extended to the first of May, 1891, and whereas there was a well on the premises producing some gas, it would make no difference to the land owner whether the gas has in fact been found by the producer or not, as long as the producer was willing to pay the price of it — $300 a year; and as he was willing and tendered that price, it continued the lease in force as if another well had been drilled and completed prior to the first of May, 3891. Now, if this position of the plaintiff’s counsel should prevail, it would result in this: that as long as $300 was paid by the plaintiff, the exclusive right to drill for oil and gas on the premises was continued in the plaintiff, and that without any limit — no limit at all of any number of years or any circumstances, except the will of the plaintiff as long as he would pay.

By the original lease, however, while the term was undeterminate if gas or oil was produced, yet the land owner had seen fit to provide that this should continue as long as gas or oil was produced in paying quantities. There was a circumstance that he had a right to rely upon, that at some time he could terminate the lease. It might be said that gas or oil could not last forever, and that when it ceased, it would terminate the contract, but if the contract and condition are to be enlarged, there would be no limit in that regard. We think that he has a right, and has an interest in knowing the fact itself, whether oil or gas is to be found in paying quantities, and that this lease can not be indefinitely extended by the mere will of the plaintiff company in paying him $300 a year.

Now the fact is, as we think it clearly established by the defense, that this gas was not being produced in paying quantities; and he, having the right to have his rights determined as to that fact, finds that this extension to May 1, 1891, was not continued further by the fact of his having obtained or rather by the fact that the plaintiff was willing to treat it as if it had been obtained in paying quantities, and paid for it, so that when in July, 1891, after May 1, 1891, extension has elapsed, this owner’s rights to his premises had been restored to him, and he had the right and the authority to grant to other parties, and it seems that he did so.

We think the rights of Priddy as claimed in the case must prevail over the alleged rights of plaintiff; that plaintiff’s petition must be dismissed at its costs, and that as to the prayer that the rights of the Priddys be quieted, we see no reason why that prayer should not be granted, and an order will be made accordingly. There will be a special mandate to the court of common pleas for execution and'costs.


text:
    CHARGE OF COURT — INCOMPLETE BILL OF EXCEPTIONS.
    Circuit Court of Hamilton County.
    The Hanauer Automobile Company v. Percy Evans.
    Decided, January 8, 1910.
    Where the evidence is not all set out in the bill of exceptions, a reviewing court can not say that the portions of the charge to the jury which are complained of were not properly given.

      Paxton, Warrington & Seasongood, for plaintiff in error.

      Mitchell Wilby, contra.
    The plaintiff below recovered a verdict for $250 against the automobile company on account of injuries from being struck by one of their autos.
    Smith, J.; Giffen, P. J., and Swing, J., concur.
   Upon the authority of the Supreme Court in the recent case of Duffy v. Queen City Box Company (reported without opinion, 81 Ohio State, reversing 11 C. C.—N. S., 69), the judgment of the trial court will be affirmed.

For aught that appears, the entire evidence not being set out in the bill of exceptions, we can not say but that there was evidence upon which the court might properly charge as it did in those portions of the general charge complained of by plaintiff in error.-

We do not think the court charged or intended to do so upon the doctrine of " last chance, " but merely called the attention of the jury to the duty that was upon the defendant if he saw the automobile .approaching.

Finding no error in the record, the judgment is affirmed.


text:
    WHAT CONSTITUTES A DISMISSAL.
    Circuit Court of Cuyahoga County.
    William A. Strauss v. Mabel Strauss.
    Decided, February 7, 1910.

      Dismissal — Record Necessary to Show, Where Made Without Prejudice —Section 5314-

    The evidence of the dismissal of an action by the plaintiff during term time is the court’s entry'to that effect.

      J. C. Hutchins, for plaintiff.

      Kerruish & Kerruish, contra.
    Winch, J.; Henry, J., and Mabvin, J., concur.
   This case was heard upon appeal and involves the validity of a judgment entered in an action for divorce and alimony.

It is claimed that the judgment was void for want of jurisdiction to render it, the case having been previously dismissed by the plaintiff and reinstated by the court without notice to the defendant and in fraud of his rights. If the case was ever legally dismissed, the contention of the plaintiff seems to be sustained by the evidence, so that the vital question in the ease is: was the action ever dismissed by the plaintiff?

The dismissal of an action by the plaintiff is regulated by the first and sixth paragraphs of Section 5314 of the Revised Statutes, which read as follows:

“An action may be dismissed without prejudice to a future action:
“1. By the plaintiff, before the final submission of the case to the jury, or to the court, when the trial is by the court.'
“6. By the plaintiff, in vacation, on payment of costs; and the clerk, in such case, shall forthwith make an entry thereof on the journal, whereupon- dismissal shall take effect.”

The record of the common pleas court in this case shows the following entry:

“Thereupon on the 15th day of November, A. D. 1906, there was duly filed in said court of common pleas, a certain entry of dismissal in this cause, which was afterwards withdrawn. Thereupon on this 15th day of November, A. D. 1906, being a day of the September term, A. D. 1906, of said court, there was duly entered upon the journal the following order to-wit: ‘the plaintiff has leave to withdraw the entry of dismissal in this cause. ’ ’ ’

The exact facts; as shown by the pleadings and the evidence, are that on the 15th of November, 1906, the plaintiff filled out and signed the usual, dismissal blank which, after giving the venue and title and number of the cause, reads:

“To the -clerk. This cause may be entered dismissed by plaintiff. Costs are paid.”

She paid the costs and delivered this document to the clerk, who noted the filing of it. The next day, having quarreled with her husband again over night, she went to the court house and asked to have the dismissal slip returned to her. This was done, and the only action ever taken by the court regarding the dismissal is shown by the record, which has been quoted.

Manifestly the clerk had no right to make any entry of dismissal under the sixth paragraph of Section 5314, for it was during a session of the court and not in vacation, so that the sixth-paragraph does not apply, and this authority being expressed -in the sixth paragraph, and not in the first paragraph, by a familiar rule of construction, we are led to conclude that to effect a dismissal under the first paragraph, something other than an entry by the clerk is necessary.

All applications, unless otherwise specified in the statutes, must be made to the court. A plaintiff may appear in open court and apply for a dismissal of his action; it may be conceded that upon such application the court has no alternative but to dismiss the case, unless the rights of other parties are involved, as shown by the record. The conclusion of the case, however, is marked by the -entry of the judge dismissing it. ITow, otherwise, would there be any record of it? The entry of dismissal has properly been called a judgment or final order, though it may not finally adjudicate the rights of the parties. Indeed, the plaintiff in this action plants himself upon such, assumption.

The plaintiff may request the clerk to bring the application for dismissal to the attention of the court, and when the clerk does so, and the court makes an entry, the cause stands dismissed, and record of the dismissal is then made to prove the fact.

Such was the request made of the clerk in this ease by the polite note left in his hands. Before the matter was presented to the court the clerk’s authority to represent the plaintiff was withdrawn. The application for dismissal was never acted upon by the court. It would seem that a plaintiff might apply in open court for a dismissal of his action and then change his mind at any time before the court entered a dismissal and direct the court not to enter it. Would anybody then say that the case had been dismissed, though the record showed nothing of the transaction ?

If we are right in our conclusion that a dismissal of a case can not remain in 'a plaintiff’s mind, but must be entered on the records of the case, .and further, that said entry during term, time can not be made by the clerk, then it follows that the entry must be made' by the judge, and none having been made by him in this case, the case was never dismissed, and no rights can be predicated upon a dismissal of it.

Petition dismissed.


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    CONSTRUCTION OF CONTRACT FOR SCHOOLING.
    Circuit Court of Hamilton County.
    Joseph C. Groff v. Frederick Hertenstein.
    Decided, January 29, 1910.

      Schools — Pupil Taken III in the Middle of the School Year — Construction of Contract as to Whether Parent Could he Held for Charges for the Entire Year.

    Where a parent sends his son to a school under a contract with the principal of such school, and pays the tuition for part of the year at the time the son enters — Held:

      1. Whether the contract be for the entire school year or for a shorter period must be determined from all the facts, words, acts, conduct arid circumstances surrounding the parties at the time.
    2. If the contract be for the entire school year it may be discharged by the son becoming disabled by illness from attending the full year; both parties must be deemed to have acted on the assumption that, if such an event intervened, the agreement for the full school year would be discharged.

      Clyde P. Johnson, for plaintiff in error.

      Frank M. Coppock, contra.
    Smith, J.; Swing, J., and Giffen, J., concur.
   The plaintiff in error in his petition claimed that the defendant in error had placed his son in his school for one year and had agreed to pay to him for tuition and board for that year $1,200; that of this amount $600 has been paid and there was still due from the defendant in error the remaining sum, $600.

The defendant in error denied this agreement and claimed that the contract was for the first part of theoschool year from September 30, 1907, to January 31, 1908, for which he had paid plaintiff in error .said $600. He also set up as a defense that he did not return his son to the school of plaintiff for the latter part of the year for the reason that by an act of God, to-wit, the serious illness of his son, he had been prevented from sending him; and thereby the contract was disehargted, if it was for a full year.

Whatever the contract was between the parties, whether for the entire school year or for a shorter period, it is apparent that the same was not in writing and had to be determined by the jury from all the facts, words, acts, conduct and circumstances surrounding the parties at the time. Both questions as to what the contract was and whether the contract was discharged by act of God were submitted to the jury and a verdict returned in favor of the defendant.

If the sole question had been before the jury as to what the contract was between the parties then the ease might easily be disposed of, but the second defense having been interposed, it is difficult to say which defense or whether both defenses were found in favor of defendant in error by the jury.

We think there was no error in the court refusing the three special charges asked by plaintiff in error; the latter two of which relate to the question as to whether or not the contract was suspended or discharged by the illness of defendant’s son.

The evidence clearly shows that the son was not returned to school by defendant in error on account of his serious illness. This was something over which neither plaintiff nor the defendant had control and such an occurrence must have been in the minds of the parties at the time the agreement was made if it was made for one full school year. They both must have acted upon the assumption that if any such event intervened whereby the boy was rendered physically incapable of attending the school, then the agreement for the full school year would be discharged. Death or a disability which renders performance impossible discharges the contract. Marvel v. Phillips, 162 Mass., 399; Stewart v. Loring, 5 Allen, 306.

We do not think the .authorities cited by plaintiff in error are applicable to the case at bar, but believe the rule as laid down in the above cases, and in our conclusion herein, to be the more reasonable. We find no error in the record and the judgment of the court is therefore affirmed.


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    RIGHTS UNDER. A DEED CONVEYING OIL LANDS.
    Circuit Court of Wood County.
    Dora H. Wollam et al v. George H. Van Vleck et al.
    Decided, October 28, 1892.

      Deeds — Uncertainty as to the Estate Granted to “Hevrs” of thte Son of the Grantor — Where no Words of Perpetuity were Used — Lease for Gas and Oil of Lands thus Conveyed — Operations by the Lessees Can Not be Enjoined by Children, of the Son of the Grantor.

    A deed granting a life estate to a daughter of a grantor and her husband with a covenant that the premises after the death of the life tenants “shall vest in and become the legal property of the heirs” of the grantor’s son, in the absence of words of perpetuity is a conveyance of a fee simple estate in the remainder to the children of tbs grantor; and tbe children of tbe son of tbe grantor, if any interest in tbe property was conveyed to them, took a life estate only, and are not entitled to an injunction against operations under an oil lease executed by the daughter of the grantor and her husband.
    The words “forever” or “to one and his assigns forever” add no force to a grant of an estate in lands.
    Scribner, J.; Bentley, J., and Haynes, J., concur.
    Appeal from Wood Common Pleas Court.
   It appears from the evidence and proof in the case that Benjamin Wollam in his lifetime was the owner of certain lands which are described in the petition, and in regard to which the controversy here arises.

The said Benjamin Wollam had two children, both now living; one Leah Crowell, wife of the defendant, Agustus Crowell; the second William M. Wollam, one of the defendants in this action. The said William M. Wollam has three daughters, the plaintiffs herein, viz.: Dora H. Wollam, Laura S. Wollam and Loraine Yambert.

July 16, 1883, the said Benjamin Wollam executed and delivered the deed which is involved in this controversy; this deed was delivered for record, July 7, 1884; afterwards, and before the commencement of this suit, the said Benjamin Wollam died intestate. An oil and gas lease of the premises in question was executed by Leah and Agustus Crowell, the grantees for life named in the deed, to Frank Drake, May 14, 1890. • This lease was afterwards assigned to the defendant, Yan Yleck, who is asserting his right-to proceed thereunder, and with the defendant, Jesse Graham, threatens to enter and drill oil wells upon the premises in question, appropriating the oil and gas underlying the same to their own use. It is alleged that these threatened acts, on the part of Yan Yleck and Graham will operate to the waste and injury of the premises.

The material allegations in the petition in this regard are as follows:

“That on said last-named date, said Benjamin Wollam designing and intending to convey to the defendants, Leah and Agustus Crowell, an estate for life for each of them in said lands, and designing and thereby intending to convey the estate in remainder therein to these plaintiffs, procured a scrivener to prepare such deed and directed and instructed him to write in said deed a grant of said lands to Leah and Agustus Crowell during the life of them and of the survivor of them with remainder over to the children of the defendant, William M. Wollam; that thereupon said scrivener did prepare said deed granting said life estate as directed, but by mistake he wrote in 'said deed that said estate in remainder should vest in the heirs of said William M. Wollam instead of writing therein that the same should vest in the children of said William M. Wollam as he was instructed to do. And said deed as thus prepared with said mistake and incorrect provision was, through inadvertance and mistake, executed and delivered by said Benjamin Wollam, and was on July 7, 1884, duly filed for record and recorded in Yol. 73, p. 265, of the record of deeds of Wood county.
" That at the time of the delivery and acceptance of said deed, said grantees and each of them knew and understood said design, intention and purpose of said grantor as hereinbefore stated, and accepted said conveyance. with full understanding that they thereby acquired respectively the estate which said grantor designed to convey and directed should be written in said deed. That thereafter, and before the commencement of this action, said Benjamin Wollam died intestate, leaving as his sole heirs at law the defendants, Leah Crowell and William M. Wollam, both of whom still survive him.
“Plaintiffs aver that "said deed by the intention of the parties and upon a fair and reasonable construction thereof, conveyed to plaintiffs and vested in them an estate in remainder in said lands, after the termination of said life estate, but if said deed does not in fact and in law in its present form convey said estate in remainder to plaintiffs, it is the cause of the mutual mistake of the parties thereto, and of the scrivener who prepared the same as hereinbefore stated, and said deed should be corrected so as to convey said lands according to the true intent and direction of said grantor and the other parties thereto as hereinafter prayed. Wherefore plaintiffs say, and aver that said defendants, Leah and Agustus Crowell, have an estate for life in said land, and that plaintiffs are the owners in fee of an estate in remainder in said lands, after the termination of the life estate of said defendants, Leah and Agustus Crowell.
" Plaintiffs further aver that said lands contain and are under-laid at great depth with valuable deposits of petroleum oil; that said defendants, Leah and Agustus Crowell, having no further or other interest in the said lands than their said life estate, did on May 14, 1890, execute and deliver to one Frank Drake a certain instrument of lease purporting to grant to said Frank Drake, his heirs and assigns, the right to enter upon said lands and drill and operate for, and remove therefrom the oil contained therein. That subsequently said Frank Drake assigned the said instrument and all the rights therein purported to have been given to the defendant, George H. Van Vleek, who now holds the same and is asserting his rights to enter upon said lands and drill wells for oil therein. That on October 21, 1890, plaintiffs notified said defendants, George TI. Van Vleek and Jesse Graham, of plaintiffs ’ interest in said lands and warned said defendants not to enter thereon and not to drill any wells therein. ’ ’

The petition then proceeds to aver, that:

“The defendants, George IT. Van Vleek and Jesse Graham, are threatening to commence drilling an oil well on said lands, and are now placing lumber, timbers and material thereon for the purpose of erecting a derrick on said lands, and are threatening to drill a well therein to a great depth to reach the oil bearing rock which underlies said lands and to draw therefrom the valuable deposits of oil therein contained, and to take and appropriate said oil and to wholly deprive said plaintiffs of the benefit thereof.”

The petition then proceeds to aver that this threatened action on the part of Van Vleek and Graham will operate to the waste and injury of the estate of the plaintiffs in the lands; and they aver that the lease is absolutely void and conveys no right upon Van Vleek and Graham to enter upon said premises and operate for oil. Wherefore, plaintiffs pray that the said deed of conveyance from Benjamin Wollam may be decreed to convey to plaintiff an estate in remainder in said lands. Or if said court shall be of the opinion that in the present form of such deed, such decree can not be made, plaintiffs pray that the said deed may be so corrected and reformed as to accord with the true intent and direction of the parties thereto, by substituting the word “children” for the word “heirs” in the grant of said estate in remainder, so that said portion of said deed shall read, “lit is further covenanted by and between the parties to this conveyance that after the death of both of the above named grantees the within described premises shall vest in and become the legal property of the children of one William M. Wollam, who is the son of the grantor thereof,” and for a decree enjoining the defendants, Yan Vleck and Graham, from proceeding to enter and drill upon the premises.

Upon the trial of the case there was given, subject to objections, testimony tending to show that the draughtsman of the deed was instructed to insert the word “children” where the word “heirs” appears therein as alleged in the petition and he substituted the word “heirs” for the word “children” because as he understood it, it was a more comprehensive term and equivalent.

There were answers and replies thereto, filed in the case, and the question substantially is whether or not the plaintiffs are entitled to have the deed reformed as claimed by them.

Now the deed reads as follows: “Know all men by these presents that I, Benjamin Wollam, of the village of Rising Sun, O., for the consideration of $3,000 received to my full satisfaction of Leah Crowell and Agustus Crowell, the grantees, do give, grant, bargain, sell and convey unto the said grantees (the words “heirs and assigns” being run through with red ink) the following described premises”; then follows the description of the lands, and then comes this clause in the deed: “It is further covenanted by and between the parties to this conveyance that after the death of both of the above named grantees, the within described premises shall vest in and become the legal property of the heirs of one William M. Wollam, who is the son of the’grantor thereof.”

This conveyance is made upon the express condition that the said grantees shall take, keep and care for the said grantor, during his natural lifetime or any part thereof at his option, providing him, the said grantor, with an .agreeable and pleasant home, together with all things necessary for his health and comfort. The evidence tends to show that these stipulations providing that the grantees for life shall provide for the grantor, constitute the only valuable consideration upon which this instrument was executed and delivered. It then proceeds:

“To have and to hold the above granted and bargained premises with the appurtenances thereunder belonging unto the said grantees (heirs and assigns erased by red ink) forever. And I, the grantor, do for myself and my heirs, executors and administrators, covenant with the said grantees (heirs and assigns again erased by red ink) that at and until the ensealing of these presents, I am well seized of the above described premises as a good and indefeasible estate in fee simple, and have a good right to bargain and sell the same in manner and form as above written; that the same are free, clear and unincumbered except as above written, and that I will warrant and defend said premises with the appurtenances thereunder belonging, to the said grantees (heirs and assigns again erased in red ink), forever against all lawful claims and demands whatsoever, except as aforesaid. ’ ’

Now it may be noted in this connection that according to the law as laid down in 1 Washburn, Real Prop., 156, according to the views there expressed, the words “forever” “or to one and' his 'assigns forever” adds no force whatever to the grant. It adds nothing, I should say, to the estate granted. The addition of these simple words as they appear here, “To have and to hold the above granted and bargained premises with the appurtenances thereunder belonging unto'said grantees forever,” so far as force and effect are to be given to the conveyance, is precisely as if the word “forever” is not here added.

We adhere to the opinion expressed on the hearing that no case is made under _ the pleadings for a reformation of this instrument.

The rights of the parties are to be determined on a proper and reasonable construction of the language used in the deed itself. If in fact a life estate only is conveyed, the plaintiffs are not entitled to relief, as was conceded in the argument, when the owner of the life estate has any such interest in the lands conveyed as entitles such owner to quarry or open mines or to drill for gas or oil, has any interest in the substance underneath the surface, whether in mines already down or not, and can not therefore complain that the owner of the preceding life estate is committing waste in opening mines or drilling for any underlyling substance.

One of the principal' questions arising in the case is occasioned by the fact that no words of perpetuity are contained in this instrument so far as any of the parties to the controversy are concerned. Plainly and clearly the grant to Leah and Agustus Crow-ell is of a life estate. If the covenant contained here, viz., “It is further covenanted by and between the parties to this conveyance that after the death of both of the above named grantees, the within described premises shall vest in -and become the legal property of the heirs of one William M. Wollam, who is the son of the grantor hereof”; if these words are to be construed into a grant to the heirs of William M. Wollam, so far as it at present appears, there are no words of perpetuity; it is simply a grant, if it be a grant at all, that the grantees shall take an estate in fee, or an estate other than one for life.

In some states by statute it is provided, or the same provision is made in regard to the construction of deeds as is made in regard to the construction of wills. This is so in Alabama, Arkansas, Georgia, Iowa, Kentucky, Tennessee, New York, Texas, Virginia, Maryland and perhaps some other states, but no such provision is contained in any statute in Ohio, and Mallon in his work takes .occasion to express dissent as to legislation óf this character, and I may say in this connection that many of the decisions cited in the argument of this case for the plaintiff in error are from the courts of states where statutes such as I have mentioned are in force.

Now as bearing upon the ease here presented, I will refer to the case of Ford v. Johnson, 41 Ohio State, 366, the syllabus of which reads: “In a deed of bargain and sale, the grant was ‘unto' said Charles Cline and his lawful issue, to go to his surviving brother or brothers and to their heirs and assigns.’ ” Martin, J., says:

‘ ‘ The original action was brought by Ford and others, the children and grandchildren of one Cline, to recover possession of land in Clinton county. The case is this: In September, 1824, Salters by deed of bargain and’sale conveyed the premises to Cline. The grant is ‘unto the said Charles Cliñe and to his lawful issue, and in ease he should die without leaving lawful issue,- to go to his surviving brother or brothers and to their heirs and assigns.’ ”

It would seem beyond question that the words “lawful issue” are equivalent to the word “children” as it is claimed to have been written in this deed. The habendum runs “unto the said Charles Cline and his lawful issue, to the only proper use of the said Charles Cline and his lawful issue (as above mentioned) forever.” There are covenants of seizin, of quiet enjoyment and against incumbrances which are with “the said Charles Cline and his lawful issue.” These are the material features of the deed; and the court comes to the conclusion that the grant to Cline and his issue, they to hold forever, conveyed to Cline nothing but a life estate.

In Brown v. Bank, 44 O. S., 269, the Supreme Court laid down a more liberal rule as to the proper interpretation of the terms of a mortgage; they say:

“By a well established general rule the use of the word ‘heirs,’ or other appropriate words of perpetuity in a mortgage or other deed of conveyance of lands, is essential to pass a fee simple estate; but this is not an inflexible rule admitting of no exception or qualification.
“Where the language employed in, and the recitals and conditions of, a mortgage plainly evidence an intention to pass the entire estate of the mortgagor as security for the mortgage debt, and the express provisions of the instrument can not otherwise be carried into effect, it will be construed to pass such estate, although the word ‘heirs’ or other formal word of perpetuity is not employed.
“A mortgage was executed in Indiana upon lands in Ohio. By the terms of the mortgage the mortgagors ‘mortgage and warrant’ the lands to the mortgagee (without the usual words of succession or perpetuity) to secure the payment of negotiable notes, and provide that upon default of payment they are to be ‘collected by foreclosure of the mortgage or otherwise.’ By virtue of an Indiana statute, the words ‘mortgage and warrant’ are operative to pass a fee simple estate in the lands mortgaged. Held, the mortgage security does not terminate with the death of the mortgagee; but upon a foreclosure proceeding, after the death of the latter, a sale of the mortgaged premises in fee simple is authorized.”

There is a very interesting discussion in that case, but the de- " cisión goes mainly upon the provision that the strict rule of Taw is to be recognized in cases where mortgages are given for security as payment of a debt.

In the case of Smith v. Block, 29 O. S., 488, the syllabus reads:

“Real estate was conveyed to C for life, and after her death to her children by E, during-the life of each of the children, and after their death to E ,and his heirs, habendum to C, during life, and after her death to the ‘said surviving children,’ and after the death of each of them to E and his heirs: Held:
“ (1) That the provision for the children was contingent upon their surviving their mother, and only such of the children as survived her took the estate.
“ (2) That E took a vested remainder in fee, subject to the intervening contingent estate of the children. ’ ’

The application of the rule there is, that the devise being to the children of C, the life estate having been conveyed to C with a provision for the children, was contingent upon the death of the mother to whom the life estate was given.

Now upon these authorities and upon the general doctrine of the books, we are clearly of the opinion that even if any estate be granted to these plaintiffs, by this deed, it is an estate for life only. We do not undertake to decide that they took an estate for life, but if they did take anything, it is simply an estate for life.

The result in that case would be that the two children of Benjamin Wollam, Mrs. Crowell and William M. Wollam, took the fee simple in remainder. These plaintiffs as life tenants would have no right to the relief which they pray for in their petition, and the judgment of the court is that the petition be dismissed with costs.


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    INJURY FROM EXPLOSION OF MOLTEN BRASS IN A CRUCIBLE.
    Circuit Court of Hamilton County.
    The Wm. Powell Co. v. Claude Gaskins.
    Decided, January 15, 1910.

      Proximate Cause of Explosion — Variance between Allegations and Proof —Res Ipsa Loquitur — Presumption—Evidence—Charge of Court.

      It is evident that the oil which might collect on brass turnings would pass off in form of vapor long before the brass was melted, and could not therefore have caused the explosion in the crucible which is complained of in this case; and in the absence of evidence that ordinary brass, whether turnings or ingots, will form a scum in fusion of sufficient strength to imprison vapors between it and the molten metal and cause an explosion, no presumption arises that the use of oil brass turnings was the proximate cause of the explosion.

      Thornton M. Hinkle, Robertson & Buchwalter and Theodore C. Jung, for plaintiff in error.

      Kinkead, Rogers & Ellis, contra.
    Giffen, P. J.; Swing, J., and Smith, J., concur.
   The only ground of negligence relied upon is stated in the petition as follows:

“That the defendant was guilty of carelessness and negligence in this, to-wit: that it knew or should have known and was bound to know that the said brass turnings in said crucible were covered with oil and that therefore said vapors and gases were liable to form as aforesaid between the surface of said molten metal and the scum forming on the top thereof, and that an explosion was liable to happen if the plaintiff attempted to skim the surface of the same in the usual manner. That the plaintiff had no knowledge or information about these facts and that the defendant was guilty of carelessness and negligence in not advising the plaintiff thereof.”

It is self-evident that the oil on the brass turnings was consumed or passed off in the form of vapor long before the brass was melted and could not therefore have caused the explosion. There is no evidence tending to prove that ordinary brass, whether clippings or ingots, will in fusion form a scum sufficient to imprison vapors and gases between it and the molten metal.

The plaintiff has therefore failed to sustain the cause of action stated in the petition; but counsel contend that the evidence makes a good cause of action and that the variance between the allegation and proof is immaterial. Evidence was offered tending to prove that brass sweepings gathered from the floor of the foundry contain nails, other particles of iron, sand and like impurities, and.that when a shovelful of such sweepings is added to the ingots of brass in the crucible, a scum or slack (slag) during the process of melting forms upon the surface and holds the gases between it and the molten brass, and that some brass turnings contain iron and other impurities which would produce a like result, although it is admitted that brass turnings fre.e from such impurities would not. At the conclusion of the evidence the court upon motion made by the defendant ruled out all the testimony pertaining to brass sweepings, so that the only material from which such scum could form are the brass turnings. The defendant knew that it was customary to add a shoveful of brass turnings to the other metal in the crucible, which practice was not ordinarily dangerous; but the evidence tending to prove that it knew or ought to have known that the brass turnings in this particular heat, as it is called, contained iron and other impurities that might cause the result claimed or be otherwise dangerous, is extremely meager, unless it be, as the trial court charged, the duty of the master to furnish reasonably safe appliances to the servant.

There are several cases in the Ohio State Reports in which this duty is thus expressed, but the late case of the C., H. & D. Ry. Co. v. Frye, 80 O. S., 289, the benefit of which the trial judge evidently did not have, places the limit of the master’s duty at ordinary care in providing a safe place and appliances. The great weight of the evidence is opposed to plaintiff’s theory of the case either as presented by the pleadings or the evidence, and it is even more probable that the accident was caused by the use of a damp skimmer although by no means certain.

It is further claimed that the maxim “Res ipsa loquitur” applies. A statement of this maxim by Shearman & Redfield on Negligence is cited with, approval in the case of Traction Co. v. Holzenkamp, 74 O. S., 379:

‘ ‘ Proof of an injury, occurring as a proximate result of an act of the defendant, which would not usually, if done with due care, have injured any one, is enough to make out a presumption of negligence. • When a thing which causes the injury is shown to be under the management of the defendant, and the accident is such as in the ordinary course of things, does not happen, if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care. ’ ’

The act relied upon as a proximate cause of the injury both in the petition and the evidence is the use by the defendant in the crucible of oil brass turnings, and if the evidence shows that such use was the proximate cause, then, in the absence of explanation, the presumption might arise that defendant was negligent; but it is the failure of proof sufficient on this issue ot which we complain.

Counsel for defendant in error say in their brief: “Defendant introduced the testimony of several witnesses experienced from twenty-five or thirty years’ work, in mixing and handling metals, to the effect that there is a danger to explosion to be apprehended from the melting of oil brass turnings with pure metal.” If this were true, the defendant was required to explain why it permitted the use of brass turnings without giving-due warning of the danger to plaintiff; but we think the record does not support the statement, nor does it show, by a preponderance of the evidence, from all sources, that the use of oil brass turnings with other brass metal, is liable to cause an explosion. Until some act of the defendant is shown to be the cause of the explosion it is premature to inquire whether negligence should be presumed or proved.

Special instruction No. 5 requested by the defendant does not embrace actual knowledge as well as probable knowledge of the danger complained of, hence it was not error to refuse it. The judgment will be reversed for error in overruling the motion for a new trial upon the ground that the verdict is not sustained by sufficient evidence, and cause remanded for a new trial.


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    SALE OF COLLATERAL BY BANK HOLDING NOTE FOR. COLLECTION.
    Circuit Court of Cuyahoga County.
    Edward W. Moore v. The Central National Bank of Cleveland.
    Decided, February 7, 1910.

      Promissory Note Secured by Collateral — Sale of the Collateral to Itself —By Bank to which the Note had been Sent for Collection — Bank Held for Value of the Collateral above Amount Due on the Note— Meaning of the Word “Holder” — Notice to Owner — -Agency-^Trust Relation — Consent of Owner to Purported Sale — Statute of Limitations.

    1. A bank having in its possession a promissory note for collection is not the “holder” of the note.
    2. The rule that a pledgee of securities can not become the purchaser thereof either at a public or private sale, except where authority so to do has been expressly conferred, is a bar to the purchase of such securities by a bank which received for collection the note to which the securities were attached, where the note authorizes the “holders” thereof in the event of default of payment at maturity to sell the securities in whole or in part with the right reserved to the holder to become the purchaser and absolute owner thereof, free of all trusts and claims.
    3. The maker of a note, which was not paid at maturity, can not be held to have been given notice of the sale of the securities pledged for its payment by the mere return to him of the canceled note, where it appears that he had requested the bank to pay the note for him and retain the securities for its own protection, notwith- • standing the bank declined so to do at the time the request was made.
    4. Moreover the bank may be said on principles of equity to have held the stock as trustee for the maker of the note, and therefore not liable for conversion of the securities until such time as it actually parted with them by sale, or gave notice to the maker that it claimed to hold the stock as its own and denied that he had any right to it in the absence of a contract with respect thereto.
    5. In such a case, failure of the maker to claim the stock, or to protest against its being held by the bank, did not amount to consent on his part to the purported sale, and the statute of limitations did not begin to run against him until he received notice from the bank of its claim of ownership under the purchase.

      Kline, Tolles & Morley, for plaintiff.

      Hoyt, Dustin, Kelley, McKeehan & Andrews, contra.
    Marvin, J.; Henry, J., concurs; Winch, J., not sitting.
    Heard on appeal.
   The plaintiff brings his action against the defendant, which is a banking institution, organized under the laws of the United States, and doing business in the city of Cleveland, state of Ohio, praying that certain certificates of stock of the Detroit United Railways Company, which he once owned and were afterwards in the hands of -the defendant, may be delivered to the plaintiff upon his paying to the defendant such sum of money as the court shall find is owing by the plaintiff to the defendant; that an accounting may be had of the dividends received by the defendant on said stock while in its hands, and that if it shall be found that the defendant has disposed of said stock, then that an accounting may be taken to include whatever may have been received by the defendant for said stock, and that the plaintiff may recover whatever the amount received in dividends and upon the sale of said stock shall exceed the indebtedness of the plaintiff to the defendant.

The following facts we find established:

Prior to December 20, 1901, the plaintiff was indebted to the defendant in the sum of $78,000, and also prior to said 20th of December, 1901, the plaintiff was indebted to "the Industrial Trust Company, a banking institution of Philadelphia, Pa., in the sum of $25,000, for which the last named company held the plaintiff’s note, and as collateral security for the payment thereof held the certificates of stock which are the foundation of the present action, and which certificates were the property of this plaintiff. The par value of said stock-was $50,000. On said 20th of December, 1901, the trust company sent to the defendant the said note, in the city of Cleveland, Ohio, where the plaintiff then resided, for collection, and at the same time sent with the note the said collateral. The $25,000 note became due on said date and the defendant immediately notified the plaintiff that said note was in its hands for collection, and that it also had in its hands said collateral. The plaintiff answered that he was unable to pay the note that day or the next, but would arrange it very shortly. Before the 31st clay of December, 1901, the plaintiff received notice more -than once, after the notice first mentioned, that the note was in the hands of the defendant for collection and must be paid. No payment, however, was made by the plaintiff on the -note, and on the 31st day of December, 1901, the defendant notified the plaintiff that the note must be paid at once, or that the collateral- would be sold. The note referred to contained the following provisions:

“I-upon default of payment at maturity--do hereby authorize and empower the holders hereof, for the purpose of liquidation of said note, and of all interest and costs thereon, to sell, transfer and deliver the whole or any part of such security (being the 500 shares of Detroit United Railways Company stock) without any previous demand,, advertisement or notice, either at broker’s board or at private sale, at any time or'times thereafter, with the right on the part of such holders to become purchasers and absolute owners thereof, free of all trusts and claims.”

On the afternoon of said 31st day of December, at the close of banking hours, the defendant, without any notice to anybody, in front of its place of business on Superior avenue, in the city of Cleveland, announced that the said five hundred shares of stock was now offered for sale to the highest bidder. Nobody paid any attention to said announcement except the officers or employes of the defendant. The attorney of the defendant made the announcement and the -offer of sale, and the defendant bid for said stock the sum of $25,050, being the exact amount that day owing upon the note already mentioned. No other bid was made and the attorney who had offered the stock for sale, announced that it was sold to the defendant. The next day being the 1st of January, and a holiday, no entry of the transaction was made on the books of the defendant, but on the 2d of January an entry was made that the stock was sold to the defendant at private sale, and thereupon the defendant remitted to the trust company in Philadelphia the amount then due upon its note, being the amount for which said stock was so purported to be sold.

Prior to the 31st of December, .aforesaid, the plaintiff had stated to the defendant, what was true, that he was laboring under- great financial embarrassment; that payment on notes held-against him by various parties was being demanded; that his assets were largely in excess of his liabilities, but that he was unable to convert such assets at once into money, and therefore unable to pay his obligations as they became due; that another bank in the city had promised him that so far as notes came to it for collection it would arrange for the payment of same, and hold the collateral to protect itself, and he urged that the defendant do the same thing in regard to this note. This, the defendant told him it would not do; that it must insist that he pay the note. The plaintiff had no knowledge of this purported sale on the 31st of December, other than the notice given to him on the morning of that day, that unless the note was paid that day the collateral would be sold. And the plaintiff prior to the 31st of December, said to the defendant that he hoped if the stock was sold there would be no publicity about it, as he feared the effect on the market value of the stock and upon his credit if it should be publicly known that this collateral was being sold.

The plaintiff says in his testimony, that the first knowledge he had of this sale was communicated to him by the president of the defendant on the 14th of January, 1902; that he was then told by this president that they had sold the stock to themselves, and had paid the note to the trust company, and would hold this collateral as security to themselves for the payment they had made and for the other indebtedness of $78,000 which plaintiff then owed to the defendant. This conversation the president of the defendant denies, and we are not prepared to say that the plaintiff sustains by preponderance of the evidence that this conversation took place, as he relates it. But in this opinion we treat the matter .as though the plaintiff had not so testified. We think he is as likely to be mistaken about his remembrance of this as the president of the defendant. But, however, we do find that on the 5th of February, 1902, the defendant transmitted. by mail to the plaintiff the note which it had paid to the trust company in Philadelphia, which was canceled as “paid” on the 31st day of December, 1901, and that such cancellation was stamped upon the note upon the date last named. The plaintiff acknowledged by letter the receipt of this note so canceled. Beyond that there was no communication between the plaintiff and the defendant in reference to said note until June 4, 1902, while the defendant still held the said collateral, when the plaintiff sent to the defendant, by mail, a draft drawn for him or by Mr. Charles Ashbrook for $37,500, and by letter accompanying said draft advised the defendant that he had sold the 500 shares of Detroit United Railways stock which it was carrying for him, and that this draft was in payment therefor. In this letter he requested the defendant to apply the proceeds of this draft on his indebtedness to the bank. The defendant immediately notified the plaintiff that it claimed to own said stock; that it had purchased the same on the 31st day of December, 1901, and denied all right on his part to any interest in the stock.

Thereafter, partly in the month of June and partly in the month of July; 1902, the defendant sold said stock for $40,000.

This suit was brought on the 9th of April, 1906. Before that time the plaintiff had fully paid to the defendant all of his-indebtedness to it other than that connected with this note, being the $78,000 hereinbefore mentioned. The plaintiff claims, that he is entitled to the full amount received by the defendant on the sale of this stock, less the amount necessary to reimburse it for its payment to the trust company at Philadelphia. The de: fendant denies that under the facts the plaintiff is entitled to any recovery, but insists that by virtue of the purported sale of December 31st it became the absolute owner of this stock, and the defendant further pleads, that in any event more than four years elapsed after its appropriation of this stock as its own before any suit was brought, and that more than four years elapsed after the plaintiff had knowledge of its claim that the stock belonged to itself, because it says that the' plaintiff was bound to take notice of that fact, if not before then on the day that he received from the defendant the canceled note which it had paid to the trust company in Philadelphia; and that the plaintiff is therefore barred by the statute of limitations from prosecuting this action.

Many additional facts were developed in the trial of the case, but we regard those already stated, with a proper application of the law to them, as decisive of the ease.

But for the statute of limitations the plaintiff is entitled to recover, unless by the purported sale of the stocks on the 31st of December, 1901, the defendant became the absolute owner of this stock, either because the sale alone transferred the ownership, or because the same was ratified by the plaintiff when ho came to know of it, for even if the sale did not confer a complete title when it was made, the title might become complete by ratification of the plaintiff after knowledge of it came to him.

It becomes necessary then to consider whether the sale in and of itself transferred the title to the defendant. It is too well establish to require the citation of authorities or any process of reasoning, that except where ¡authority is expressly given for that purpose, the pledgee can not be the purchaser of the pledged securities, either at public or private sale. The language of the note which it is claimed authorized the purchase here has already been quoted, and is here repeated:

“I,--.upon default of payment at maturity do hereby authorize -, the holders hereof * * * to sell the whole or any part of such security * * * at any •time thereafter, with the right on the part of such holders to become purchaser and absolute owner thereof, free of all trusts and claims.”

It will be noticed that this authority to purchase is given only to the holder of such securities. The sale was made, not to the pledgee, but to an agent of the pledgee, whose only interest in the matter was to obtain payment of the note. The purchase was made not for the pledgee, but for the agent in its own right. Was the defendant the holder of the note in the sense in which that word is used in the clause of the note quoted? We think not. Parsons, Notes & Bills, Section 253, reads:

“By the holder of negotiable paper is meant in law the owner of it, for if it be in his possession, without title or interest, he is in general considered only as the agent of the owner.”
Daniels in his work on Negotiable Instruments, Section 716, defines the holder of a negotiable instrument as:
‘ ‘ Anyone who has acquired it in good faith for a valuable consideration- from one capable of transferring it.”

Surely the agent with whom the note had been left for collection, and to whom the securities had been delivered, for, sale, if necessary to secure the collection, except he be the holder of the securities as we have said the defendant was not in this case, could not, either as against the pledgee or the pledgor, become the purchaser at the sale made by such agent. Mecham on Agency, Section 68 reads:

“For the same reason, one can not be both the party and the agent for the opposite party in the same transaction. Thus, as will be more fully explained hereafter, except with the full knowledge and consent of his 'principal, an agent appointed to buy lands or goods for his principal can not buy of himself; and an agent to sell lands or goods for his principal can not sell to himself, nor can an agent authorized to receive payment for his principal bind the latter by the receipt of money due from himself. ’ ’

And so we hold that the defendant did not become the owner of these stocks by virtue of the purported sale of December 31, 1901.

Under the facts, as stated, the only knowledge the plaintiff had of what the defendant had done with the securities was obtained from the delivery of the canceled note to him by the defendant on the 5th day of February, 1902. From that fact he did know that the defendant had paid his note, and we of course knew that it still held the collateral.

Of course, if the defendant had, as a volunteer, paid the debt of the plaintiff to the trust company of Philadelphia, the plaintiff was entitled forthwith to the delivery of the stock'to him, and might have made demand at once for such delivery, treating the further holding of the collateral as a conversion then made, and if he delayed making such demand beyond the period of limitation fixed by the statute he would be barred. In view, however, of the fact that he. had requested the defendant to pay the note for him and retain the securities for its own protection, although the defendant had notified him that it would not do so, yet when he found that it had paid the note, and still held on to the collateral securities, he would have been and should have been defeated, if he had brought an action for the delivery of the stock to him, or an action for the valúe of the stock, on the ground that the defendant had converted the same to its own use. The most favorable construction to the conduct of the defendant which the plaintiff could have given, he being ignorant of the purported sale on the 31st of December, was that which his con-duet indicated that he did give, to-wit, that the defendant had complied with his request to pay the note and retain the collateral for its own protection. In short that it — “Vowing it would ne’er consent, consented.”

It is said that this is the most favorable construction which the plaintiff could give to the conduct of the defendant because to have given any other construction would have resulted, if such other construction was justified, in depriving the defendant of the protection afforded by the retention of these stocks. If the plaintiff was justified, as we think he was, in giving the construction to the conduct of the defendant first suggested, then there was no ratification by him of the purported sale, because he knew nothing of it; nor was there any conversion, actual or constructive, by the defendant until the date in June, 1902, when the draft was presented to the defendant and was notified that the defendant claimed the stock as its own.

See Glidden v. Bank, 53 Ohio St., 588, the second and third paragraph of the syllabus of which read as follows:

“2. If the pledgor do not so elect, the pledgee, while he retains the possession and control of the property with the ability to perform his part of the contract by restoring the property to the pledgor, can not be held for its conversion, without demand for its return accompanied with an offer by the pledgor to per-from his part of the agreement.
“3. When, however, the pledgee puts it out of his power to perform his part of the agreement, by an. unauthorized disposition of the property, he will be liable for its conversion without demand and offer of performance by the pledgor; and when he has so disposed of a part of the property, he may be held for the conversion of all of it as of the time of such disposition.”

Again, upon principles of equity, the defendant may be held as holding this stock as trustee for the plaintiff after the payment of this note, and so not liable for its conversion, until it actually parted with it by sale in June and July, 1902, or in any event until it notified the plaintiff in June that it claimed to own the stock and denied that he had any right to it in the absence of any contract about it.

For a discussion of this view see: Bispham’s Principles of Equity, Section 91 and following.

After a discussion of the principle in Sections 91 and 92 this writer says in Section 93:

“The rule under discussion applies not only to persons standing in a direct fiduciary relation towards each other * * * but also to those who occupy any position out of .which a similar duty ought in equity and good morals to arise. ’ ’

It seems clear to us that in good morals, the defendant should have held this stock for no purpose but to indemnify it for the payment made to the trust company, and that it may well be held, therefore, to have held this as trustee, in which case, so long as it held it, the plaintiff had no right of action against it until he tendered payment of the amount of his debt, and hence was not barred in his present action by the statute.

This principle is stated in the case of Carpenter v. The Canal Co., 35 Ohio St., 307, at page 317, as follows:

" The court will sometimes make use of the machinery of a trust to aid an injured party in obtaining property, the title to which has been acquired by another by fraudulent means. * * * Relief in such case is granted on the ground of fraud and the statute of limitations will not be a bar where there is concealment. ’ ’

The third paragraph of the syllabus in this case reads:

“An action for wrongfully depriving a mortgagee of his security is barred in four years, whether such action is for a tort or for relief on the ground of fraud by charging the guilty party as trustee. In the former case the action is deemed to have accrued at the time of the injury, in the latter case, on the discovery of the fraud.”

Perry on Trusts, Section 168, discusses constructive trusts, and includes among them “trusts that arise from constructive fraud,” and says that:

“In this class the conduct may not be actually tainted with moral fraud or evil intention, but it may be contrary to some rule established by public policy for the protection of society. Thus a purchase made by a guardian of his ward, or a trustee of his ceshii que trust, or by an attorney of his client, may be in good faith, and as beneficial to all parties as any other transaction in life, and yet the inconvenience and danger of -allowing contracts to be entered into by parties holding such relations to each other are so great that courts of equity construe such contracts prima facie to be fraudulent, and they construe a trust to arise from them. ’ ’

And in Section 167 of the same work, it is said:

“It is not, however, the rule that the court will presume or construe a trust to arise except in cases of absolute necessity; for courts of equity will act upon the just preponderance of all the facts and circumstances of proof in the case.”

While it is not supposed that the defendant did that which it understood to be a fraud upon the plaintiff, especially as the evidence fails to show that the price it assumed to pay was not fully as much as could have been obtained from any other person, yet in holding on to this stock, under the purported sale of December 31, 1901, it did that which in legal effect worked a fraud upon this plaintiff, if it was done without his knowledge or consent; and we hold that though he knew that the defendant was holding on to the stock, yet if -he understood -and had a right to understand that such holding was simply to protect itself for the payment which it had made to the trust company, his making no claim or protest about it did not constitute a consent on his part to its holding such stock under the purported sale. The result would be that the- statute of limitations did -not begin to run against him until he was notified in June, 1902, of the claim of the defendant under such purchase.

The result is that we find the defendant did not become the owner of the stock, by the purported sale on the 31st day of December; that such salé was never ratified by the plaintiff. That the only justification for the defendant- in holding this stock, after it had paid the note to the trust company, was to protect itself from loss on account of such payment, and that because in doing so, it was complying with what the plaintiff had requested it to do. That it was not complying with the terms under which it held the stock when it sold the same in June and July, 1902, and that the plaintiff is entitled to an accounting and to a recovery for the amount received for the stock, with, interest thereon, after deducting therefrom the amount paid by it for the plaintiff to the trust company, with interest thereon, and an order is made accordingly.