author: Hornbeck, J.

text:
    Jacobs et al., Appellees, v. DeMaria et al., Appellants.
    (No. 4953
    Decided September 29, 1953.)

      Messrs. Isaac & Postlewaite, for appellees.

      Mr. Allen Pretsman, for appellants.
   Hornbeck, J.

This is an appeal from a declaratory judgment construing a written lease originally made between plaintiffs, the Jacobs, as lessees, and the defendants, the DeMarias as lessors. Plaintiff The Bell Furniture Company later became an assignee of the Jacobs.

The lessors, appellants herein, are the owners of certain real property described in the petition situated at 2531-2539 Cleveland avenue in Columbus, with a frontage of 66.16 feet and a depth of approximately 140 feet, upon which there is a two-story building with basement. The lease was for a period of 15 years on and after September 1, 1944.

The provision in the lease which is in controversy is covenant 16, and reads as follows:

“That the lessees shall pay the insurance premium for the insurance carried on the building on said premises against loss or damage by fire, windstorm, tornado, cyclone and explosion, in the amount of not less than thirty thousand dollars ($30,000). Said insurance to be payable to lessors. That in case any damage should occur which is covered under this policy, the lessees shall notify the lessors not less than twenty-four (24) hours after the occurrence of said damage and the lessors shall make the necessary repairs as soon as possible.”

The court found to be proper and answered questions numbers one and two.

“Question 1. Under the terms of covenant 16 of the lease described above may the lessors require the lessees or assignee to pay the premiums for whatever specific amount of insurance for said premises which lessors may purchase at lessors’ sole discretion as to amount, type, coverage and insurance company?”

This question was answered in the negative.

“Question 2. If the answer to question 1 is in the negative, what are the limits of lessees’ or assignee’s responsibilities and duties with respect to insurance for said premises?”

The court answered this question:

“The limit of the duty of the plaintiffs with respect to insurance for the building is to pay the premium for at least but not more than $30,000 worth of insurance against loss or damage by fire, windstorm, tornado, cyclone and explosion.”

The trial judge was of the opinion that there was no ambiguity in covenant 16 and that the $30,000, the amount set out in the covenant, was the specific sum total of the amount of insurance the premium upon which the lessees were obligated to pay.

It is the contention of the defendants that the $30,000 was the minimum amount of insurance that could be carried on the premises when the lease was executed, but that the covenant authorized the lessors to carry and bound the lessees to pay the insurance premium for such an amount of insurance as the lessors carried on the building.

In the stipulation of facts in this court, it appears that the $30,000 mentioned in covenant 16 was 80 per cent of the value of the building at the time the contract was executed, and that the amount of the insurance, namely, $30,000, was on the basis of 80 per cent coinsurance. At a later date the amount of insurance carried on the premises was increased to $55,000 which sum was carried on an 80 per cent coinsurance basis. This amount of insurance was agreeable to the assignee and lessors and the premium was paid by the assignee. On or about March 21, 1952, defendants, lessors, purchased insurance on’ the premises in the amount of $95,000, which sum was representative of the full replacement value of the building on the premises. The assignee was willing and offered to pay the premium upon $76,000 of insurance, which would be 80 per cent of the value, and which sum would be carried on an 80 per cent coinsurance basis. The lessors and the assignee being unable to agree as to their respective obligations, this action was instituted, for declaratory judgment.

Without extended comment, it is our conclusion that, although question 1 should be answered in the negative as the trial judge found, the qualification should be different than that fixed. It is our opinion that the $30,000, in the light of the circumstances in the case and subsequent conduct of the parties, was a requirement that insurance be paid for by the lessees upon an 80 per cent coinsurance basis, viz., upon 80 per cent of the value of the building when the insurance was written. Had there been no reference made to the sum of $30,000, the covenant would provide for the payment by the lessees of premiums for any reasonable amount of insurance carried by the lessors on the building on the premises.

The judgment under review construes the obligation of lessees under the contract to be to pay premiums on not more than $30,000. The language of the contract is “not less than $30,000.” The amount of insurance to be carried might normally, as it has, increase but it would not be in excess of 80 per cent of the value of the building. This was the construction which the parties themselves put upon the contract.

It is conceivable that the covenant as to insurance of not less than $30,000 might be construed to require the lessors to carry a lesser amount of insurance and the lessees to pay premium on that amount only. This construction would follow if the buildings should decrease in value by more than 20 per cent from their value when the lease was executed. This interpretation of the questioned covenant is strengthened by the affidavit of Arthur Jacobs who says, in substance, that it was the understanding when the lease was executed that the $30,000 was based upon 80 per cent of the value of the building on the leased premises.

It appears from the affidavit of Franklin E. Rice, which was not considered by the trial judge but in our judgment should have been as should the affidavit of Jacobs, that the type of insurance which the lessors eventually carried on the building had only recently come into vogue. It is indeed doubtful if the parties when the lease was executed could have had in contemplation insurance on the building on 100 per cent replacement value basis.

We, of course, do not base our judgment on the contents of either of the affidavits heretofore mentioned and appended to the bill of exceptions, and could not do so. If they were to be considered it would be by remand to the trial judge.

The record requires application of the principle announced in the second paragraph of the syllabus of Courtright v. Scrimger, 110 Ohio St., 547, 144 N. E., 294:

“Where words used in a contract are susceptible of more than one meaning, and the signatories to the contract have by acts done in carrying out the terms thereof placed their own interpretation upon the meaning of the words, courts will adopt the interpretation which the signatories to the contract have themselves made.”

The first, second, and, if desired, the fourth question will be answered as herein indicated. The judgment of the trial court is modified accordingly.

Judgment accordingly.

Wiseman, P. J., and Miller, J., concur.


source: Caselaw Access Project

author: Wiseman, P. J. Hornbeck, J.,

license: Public Domain

text:
    The Fayette County Agricultural Society, Appellant, v. Scott et al., Appellees, et al.

      (No. 269
    Decided October 23, 1953.)

      Messrs. Brownfield, Ford & Douglas and Mr. C. William Malone, for appellant.

      Mr. Carrington T. Marshall and Mr. Frederich L. Orum, for appellees.
   Wiseman, P. J.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Fayette County, dismissing plaintiff’s application to assess compensation in an appropriation proceeding wherein plaintiff, appellant herein, The Fayette County Agricultural Society, seeks to appropriate for agricultural fair purposes certain lands owned by the defendants.

Defendants filed a motion in the trial court to dismiss the application to assess compensation “for the reason that said application did not conform to the procedure as defined in the statutes of Ohio relating to appropriation of .private property by municipal corporations, and particularly as defined in Sections 3679 to 3683, inclusive, of the General Code of Ohio, in that no notice was served five days in advance of this application as required # # * ” by the sections relating to appropriation proceedings by municipal corporations. The motion to dismiss was sustained.

Plaintiff states that the five errors assigned raise three propositions which are procedural in nature. First: Whether the notice of the “time and place” of an application to assess compensation as required by Section 3682, General Code, and referred to in Section 3683, General Code, must be served five days before the filing of the application with the clerk of courts, or five days before the preliminary hearing on the application.

Section 9885-1, General Code, provides:

“When it is necessary in the opinion of any county agricultural society to procure or enlarge any site for the purpose of holding an agricultural fair, and the agricultural society and the owner of the property needed for such purposes, are unable to agree upon the sale and purchase thereof, the agricultural society shall make an accurate plat and description of the parcel of land which it desires for such purposes, and file them with the probate judge, or with the Court of Common Pleas in the county in which the land sought to be taken is located. Thereupon the same proceedings of appropriations shall be had which are provided for the appropriation of private property by municipal corporations in Sections 3681 to 3697, both inclusive, of the General Code.”

The pertinent sections controlling appropriation proceedings by municipal corporations, to which reference must be made, are Sections 3682 and 3683, General Code.

Section 3682, General Code, provides:

“Notice of the time and place of such applications shall be given in the ordinary manner of serving legal process, to all owners or agents of owners resident of the state, whose place of residence is known, and to all others by publishing the substance of the application, with a statement of the time and place at which it is to be made, once a week for three weeks nest preceding the time of the application in some newspaper of general circulation in the county.”

Section 3683, General Code, provides:

“If it appears that such notice has been served five days before the time of application, or has been duly published, or that such notice has been waived, the court shall set a time for the assessment of compensation by a jury, but it may be made $t a special term of court, and the jury shall be drawn and the trial proceed as in other civil actions.”

Under Section 3682, General Code, “notice of the time and place of such application shall be given in the ordinary manner of serving legal process.” Under Section 3683, General Code, “If it appears that such notice has been served five days before the time of application # * the court shall set a time for the assessment of compensation by a jury.” Plaintiff contends that service of the notice five days before the preliminary hearing, which was done in this case, complied with the statutory requirements. Defendants contend that no provision is made for a preliminary hearing and that if any time should be given to the owner to protect his rights the notice should be given before the filing of the application. Section 3683, General Code, specifically provides for presenting the application to the court, which at that time must decide whether proper service has been made and whether all legal requirements have been satisfied and, if so, the court then must fix the time for. the assessment of compensation by a jury. The assessment of compensation by a jury is the only matter left undecided. When the application is presented to the court it determines in a preliminary hearing whether all statutory requirements have been met in regard to service of notice to assess compensation. This is the only issue to be tried. 15 Ohio Jurisprudence, 998, Section 334. The statute gives ample notice to the landowner to make defense on this issue. Appropriation proceedings are actions in rem. In re Appropriation by Supt. of Public Works, 152 Ohio St., 65, 87 N. E. (2d), 257; Martin v. City of Columbus, 101 Ohio St., 1, 127 N. E., 411; 1 Ohio Jurisprudence, 301, Section 12.

. In 32 Ohio Jurisprudence, 370, Section 4, it is stated:

“Furthermore, as to proceedings strictly in rem, and seemingly as to proceedings quasi in rem, notice, where not otherwise provided by the Legislature, may be only that which the law infers an owner receives when his property is seized and proceeded against judicially. ’ ’

In a proceeding to appropriate property by a municipal corporation, the state Legislature has seen fit to provide that the notice shall be served “in the ordinary manner of serving legal process.” Section 3682, General Code. «

We revert to a consideration of the statutory provisions. Legal process does not precede, but necessarily follows the institution of an action or proceeding. 42 American Jurisprudence, 5, Section 2; 32 Ohio Jurisprudence, 365, Section 2; State, ex rel., v. Guilbert, Aud., 56 Ohio St., 575, 619, 47 N. E., 551, 60 Am. St. Rep., 756, 38 L. R. A., 519. It does not consist of a notice of an intention to institute an action or proceeding as contended by appellee. The action or proceeding may never be commenced, and if commenced the owners would not have received notice of the actual commencement. It will not be presumed that the state Legislature intended to enact a law producing unreasonable or absurd consequences. State, ex rel. Cooper, v. Savord, Judge, 153 Ohio St., 367, 92 N. E. (2d), 390. The gist of the requirement of the statute is that the landowners be notified five days before the application is acted upon by the court preparatory to issuing an order that the matter be sent to the jury for the assessment of compensation.

The term, “application,” as used iu the statute, is intended to describe a legal document which, when filed, will start the wheels of justice turning. An application prepared and signed, but not filed, has no legal effect and does not accomplish this purpose. A notice served at this juncture, in our opinion, does not comply with the statutory requirement of legal process. To constitute legal process the notice must relate to some formal legal action or proceeding already instituted.

The provision in Section 3682, General Code, referring to publication of the notice impliedly defines the word, “application,” to mean the time of the hearing on the application. We find no reported case in which this precise question has been determined. However, the courts, in several instances, have made statements indicating that the time of the application referred to the time of the hearing on the application, rather than the time of filing of the application. See Toledo & Central Ohio Ry. Co. v. City of Fostoria, 7 C. C., 293, 4 C. D., 602, affirmed without opinion in 56 Ohio St., 726, 49 N. E., 1115; Railroad Company v. Village of Belle Centre, 48 Ohio St., 273, 290, 27 N. E., 464; P. C. C. & St. L. Ry. Co. v. City of Greenville, 69 Ohio St., 487, 496, 497, 69 N. E., 976; City of Dayton v. Vance, 26 N. P. (N. S.), 161, 167. The case of Harbeck v. City of Toledo, 11 Ohio St., 219, can be distinguished on the facts where a copy of the application was not set out in the publication notice as required by statute.

We hold that Section 9685-1 and Sections 3681 to 3697, inclusive, of the General Code are in pari materia and must be construed together.

In the case at bar, the notice was served after the filing of the application, and more than five days before the preliminary hearing, at which time the trial court found that notice had been duly given, and set the time for the assessment of compensation by the jury. We are of the opinion that the record shows a compliance with all the statutory requirements and the dismissal of the application thereafter constituted reversible error.

Second: Whether a general appearance in an appropriation proceeding by a defendant-landowner, requesting and being granted continuances, filing written pleadings by way of demurrer and answer, and thereafter moving to dismiss the proceeding, constituted a waiver of any alleged defects in the notice of the application. Defendants contend that all statutory requirements in appropriation proceedings must be strictly observed, and are mandatory; that a noncom-pliance does not vest the court with jurisdiction, and cite in support thereof numerous Ohio cases, among which are Harbeck v. Toledo, supra; Grant v. Village of Hyde Park, 67 Ohio St., 166, 172, 65 N. E., 891. We agree with this statement as a general proposition of law. In the instant case, relating the question here discussed to the issue presented, what was necessary to be done to vest the court with jurisdiction? Plaintiff answers that the service on the defendants of a notice of the time and place of the application five days before the hearing on the application vests the court with jurisdiction. The defendants contend the service of the notice in this case was a nullity and failed to vest jurisdiction. The court had jurisdiction of the subject matter. What is challenged here is jurisdiction over the person. Assuming that the service of the notice was a nullity, with which we cannot agree, did the defendants enter their appearances? The statute (Section 3683, General Code), provides that the defendant may waive service of the notice. One of the defendants, Herbert Wilson, filed a written waiver of the service of the notice. Certainly, the court acquired jurisdiction over the person of Wilson. In our opinion, the defendants would be in court and the court would have acquired jurisdiction if no ■ notice at all had been served. In the case at bar, the defendants appeared at the preliminary hearing; later filed a demurrer on the ground of another action pending; appeared in court to withdraw the demurrer; filed an answer before the filing of the motion to dismiss; and requested and were granted a continuance of the preliminary hearing. At no time did defendants object to the jurisdiction over their persons prior to filing the motion to dismiss. Voluntary appearance of the defendants is equivalent to service. Section 11287, General Code. It is well established that service of summons is waived by a general appearance. Jurisdiction of the person, once acquired, cannot be withdrawn. 32 Ohio Jurisprudence, 413, Section 36; 3 Ohio Jurisprudence, 11, 28 and 30.

In Railroad Co. v. Village of Belle Centre, supra, the court, on page 292, said:

“Besides, it is shown by the record of the Probate Court, that the plaintiff in error, at the time and place fixed for making the application as designated in the published notice, filed its motion in that court to dismiss the proceeding and deny the application, for the reason, among others, that the court had no jurisdiction of the subject-matter. The motion was argued by counsel for the parties, and overruled by the court. This effected the appearance, and.gave the court jurisdiction of the plaintiff in error. Elliot v. Lawhead, 43 Ohio St., 171.”

See, also, Jones v. City of Mineola (C. C. A., Texas), 203 S. W. (2d), 1020; England Pond Drainage District v. Hurst, 344 Ill., 610, 176 N. E., 733. In our opinion the court acquired jurisdiction over defendants Scott and Crone not only by service of notice as required by statute, but by entry of general appearance, which was effectual to vest the court with jurisdiction. The court acquired jurisdiction over defendant Wilson by waiver which was filed more than five days before the preliminary hearing, and oyer defendant, Nushawg, by service of the notice as required by statute.

Third: Whether plaintiff was required by Section 9885-1, General Code, to file in the Common Pleas Court a separate paper designated as a “ description ’ ’ of the land sought to be appropriated when both the application to assess compensation and the notice served on the landowners contained a complete legal description of the property and when there is simultaneously filed therewith a plat of such lands. The provisions of Sections 9885-1 and 3681, General Code, which are in pari materia, were complied with by incorporating a correct legal description of the land in the application to assess compensation and filing therewith a plat of such lands. In fact the procedure followed was more effective than that for which the defendants contend. In our opinion the trial court was in error in ruling that plaintiff has not complied with the requirements of the statute in this regard.

Finding error in the record prejudicial to the rights of the plaintiff, the judgment is reversed and the cause is remanded for further proceedings according to law.

Judgment reversed.

Miller and Hornee ok, JJ., concur.

Hornbeck, J.,

concurring. I agree with the foregoing opinion as to all assignments of error except the first and concur in the judgment.

The interpretation of the majority of the court of Sections 3682 and 3683, General Code, is desirable and practical from a procedural standpoint, but I can not find authority for such interpretation in the language of the applicable sections of the Code.

Section 9885-1, General Code, defining the requisite procedure to be followed by the plaintiff in its purpose to appropriate the land in question remands it to Sections 3681 to 3697, inclusive, General Code. The first use and the source of the meaning of “application,” as found in the latter sections of the Code, j.s in Section 3681, General Code:

“Upon the passage of such ordinance [a resolution expressing an intent to appropriate land], the solicitor shall make application to the Court of Common Pleas or to a judge in vacation, to the Probate Court, or to the insolvency court, in the county in which the land sought to be taken is located, which application shall describe as correctly as possible the land to be appropriated, the interest or estate to be taken, the object proposed, and the name of the owner of each lot or parcel thereof.” (Emphasis ours.)

Section 3682, immediately following Section 3681, continues:

“Notice of the time and place of such application shall be given in the ordinary manner of serving legal process, to all owners or agents of owners resident of the state, whose place of residence is known, and to all others by publishing the substance of the application, with a statement of the time and place at which it is to be made, once a week for three weeks next preceding the time of the application in some newspaper of general circulation in the county.”

Certainly the words, ‘£ such application, ’ ’ as used in Section 3682, General Code, refer to the “application” defined in Section 3681, General Code, and are one and the same instrument. To hold that “ application,” as used in Section 3682, General Code, refers to a hearing following the filing of the application with the clerk does violence to the express language of Section 3682, General Code, that notice shall be given of “such application.”

There is nothing to indicate that the word, £ £ application,” in Section 3683, General Code, is used in any other sense than in the two sections immediately preceding it. This section provides for a determination by the court in which the application is filed that if due notice has been served five days before the time of application, or has been published, or that the notice has been waived, the court shall set a time for the assessment of compensation, etc.

The procedure outlined by these sections of the Code is somewhat awkward, but it may not be said that it cannot be followed. Notice before filing a legal action is not unknown to the law. For instance, in forcible entry and detainer actions, the notice to leave the premises must be served three days before the action is instituted.

In Section 3680, General Code, covering proceedings on passage of a resolution by council declaring intent to appropriate land provides for service on resident land owners affected by written notice “by a person designated for that purpose, and return made in the manner provided by law for the service of summons in civil actions.” This notice would be given before any action to appropriate is instituted in court.

It will be noted that it is optional with the plaintiff that it make the application provided in Section 3681, General Code, to any one of three courts. So that it is not unusual that Section 3682, General Code, requires that the notice to be served on the land owners should state the place where the application is to be made and the time of filing the application which would necessarily be at least five days subsequent to the notice required by Section 3682, General Code.


author: Hurd, P. J. Skeel, J.,

text:
    John Meckes & Sons Co., Appellee, v. American Meat Co., Appellant. (Two eases.)
    (Nos. 22906 and 22910
    Decided February 10, 1954.)

      Mr. S. J. Blair, for appellee.

      Messrs. Spieth, Spring & Bell, for appellant.
   Hurd, P. J.

In this action, we have before us for review two separate appeals on questions of law from a judgment of the Court of Common Pleas of Cuyahoga County. For purposes of brevity, the parties will be designated as plaintiff and defendant, respectively, as they appeared in the trial court.

Plaintiff filed its petition for money only in the sum of $16,275.92, plus interest, alleged to be due as rent under a written lease covering three floors of a commercial building located at West 25th street and Carroll avenue in Cleveland.

The defendant filed an answer which, by leave of court, was denominated “Answer and Cross-Petition” wherein it denied that it was indebted to plaintiff in any sum whatsoever and claimed that the rental to plaintiff was by agreement of plaintiff abated during the period for which suit was brought commencing December 8, 1948, through October 28, 1949, and further claimed the right under a contractual provision of the lease to deduct from rentals claimed by plaintiff, the cost of repairs and improvements made by it to the leased premises.

Plaintiff in an amended reply admitted the provisions of the lease and its obligation to make certain repairs as provided therein, but by way of affirmative defense, alleged, in substance (1) that the defendant had prevented plaintiff from making the promised repairs whereby plaintiff was excused from its obligation to do so and (2) that the defendant had demanded the making of the repairs, not for its own enjoyment and convenience, but only for the purpose of coercing plaintiff into granting an extension of defendant’s lease, and by reason thereof had not made the demand for the repairs to the premises in good faith.

Trial by jury was waived and after a full hearing and consideration of briefs, the trial court rendered judgment in favor of plaintiff in the sum of $5,541.69 and costs.

Prom this judgment both parties filed separate appeals, defendant in appeal No. 22906, contending that the trial court erred in giving effect to an intention of the contracting parties not expressed in their written agreement and that the plaintiff was not entitled to recover in any amount whatsoever because the cost of repairs to plaintiff’s building equalled and even exceeded the amount of rentals claimed by plaintiff by reason whereof rent was abated ‘to the extent of such cost and, therefore, that judgment should have been rendered for the defendant and, plaintiff in appeal No. 22910, contending that the trial court erred in not awarding judgment for the full amount prayed for in its petition.

The trial court, upon request, made separate findings of fact and conclusions of law, the conclusions of law setting forth, inter alia, that against the amount of $16,275.92, otherwise due plaintiff as rentals, defendant was entitled to a credit of $11,619.02 expended for repairs, leaving a balance of $4,656.90 unpaid and owing from defendant to plaintiff as of October 29, 1949, which, with interest at 6 per cent from that date to date of judgment in the amount of $884.70, made a total sum of $5,541.60, for which the judgment was rendered as above indicated.

The essential findings of fact of the trial court may be briefly summarized as follows:

On October 20, 1949, and for several years prior thereto, plaintiff was lessor and defendant was lessee of three floors of the commercial building hereinbefore described. The leases, which were entered into on or about May 28, 1937, and by the terms of which were to expire on September 7, 1950, were in writing and admitted in evidence. Joint exhibit 4 and exhibit A attached thereto and made a part thereof, made provision for repairs during the term of the lease in the following language:

1 ‘ The lessor agrees to put the passenger and freight elevators in said building in good working condition and in compliance with'the ordinances of the city of Cleveland and the laws of the state of Ohio and to secure certificates permitting their operation from the Commissioner of Buildings of the City of Cleveland and further agrees to make the repairs specified in the paper writing marked “exhibit A” and attached hereto and made a part hereof as if fully rewritten herein and agrees that it will commence said repairs within fifteen (15) days after receipt from the lessee of written demand so to do and will complete said repairs within sixty (60) days after receipt of such written demand, and further agrees that if said repairs are not begun within such fifteen day period lessee may make such repairs, or, if commenced and" not finished within the period hereinbefore specified, may complete the same and deduct the cost thereof from the rentals payable hereunder and under the other three leases hereinbefore mentioned, and the lessor further agrees that all such rentals shall be abated for the period that such repairs shall remain uncompleted after the expiration of sixty (60) days after the receipt of said written demand, except that if the commencement or completion of said repairs by the lessor will be delayed by war, fire, strikes, flood, accident or any other cause interfering with the procurement of labor or materials for such repairs, the times limited for such commencement or completion will be extended by the period of such delay and the rent will not be abated during such period.”

Exhibit “A,” attached to the lease, is a photostatic copy of a scale drawing prepared by one Milo Seymour Holdstein, registered architect No. 1072, itemizing and setting forth the detail of the repairs which the lessor agreed to make upon demand. Repairs were to be made to the second and third floors of the building and consisted among other things of the following:

“The installation of new toilets for men and women with instantaneous hot water heaters and mastic floors; removing rotted plaster under sills and replastering; caulking under all sills and replacing all rotted sills, sash or trim around building; the making of a new office by removing stairs and installing flooring, plaster, trim, etc.; patching all rotted and missing flooring and column bases, removing all radiators and adjacent pipes, and sanding and filling the entire floor; painting all walls, ceiling, columns and trim with three coats of first grade lead and oil paint; removing all wood moulding and replacing with flat wire mould, installing globes in outlets with ail fixtures hanging from the ceiling at equal distances; replacing broken glass throughout; installing new maple flooring in a certain area; repairing stairs to the lower floor with risers and new maple treads and a rail and newel; enclosing stairs; putting two elevators in first class working order ; closing stairs and installing a floor over the opening.”

The rental for the premises was paid by the lessee up to and including December 7, 1948. From December 8, 1948, to October 20, 1949, inclusive, the lessee occupied the premises but did not pay any rent. The period following October 20, 1949, is not involved in the suit.

The lessee first made demand of the lessor by letter to make repairs on August 24, 1946. Thereafter, the lessor did send one man to the premises. The work, however, could not be done because of war restrictions. On October 30, 1948, after war restrictions had been released, the lessee again made written demand upon the lessor. Fifteen days having elapsed thereafter, during which no repairs were made, the lessee, on November 20,1948, advised the lessor of lessee’s intention to make the repairs. On November 22, 1948, the lessor denied any obligation to make repairs and advised the lessee that any steps in that direction would be at lessee’s own risk and expense. The lessee then discontinued paying the rent after December 7, 1948, and on December 15, 1948, entered into an agreement with The J. H. Dickson Company to make repairs on a cost plus 20 per cent basis, the performance by Dickson either in material or labor not to be in excess of $1,800 per contract month. Under this contract, the J. H. Dickson Company did work in the area specified in exhibit A, for the next 11 months, for which the defendant paid the total sum of $17,428.50.

It clearly appears from the findings of fact and the judgment, that the issues of fact raised as affirmative defenses by plaintiff in its amended reply traversing the allegations of defendant in its answer and cross-petition, were determined by the trial court in favor of the defendant and against the plaintiff, the court stating in part as follows:

“It is contended by the plaintiff that the defendant acted in bad faith by preventing the plaintiff from making repairs, but these claims of the plaintiff the court does not find substantiated by the evidence. The court does find that after receipt of demand for repairs on October 30, 1948 after restrictions had been lifted, that the plaintiff failed to make repairs and that therefore the defendant had a right to make such repairs as were within the limitations provided for in the lease and to deduct the cost thereof from rents due.” (Emphasis supplied.)

However, upon the legal question of interpretation of the rights and liabilities of the parties as defined by the provision of the lease relating to repairs the trial court stated in its conclusions of law in part “the court finds that the contract must be so construed as to provide that the defendant was limited to such repairs as could, without restrictions, be completed within sixty days.'’’ (Emphasis supplied.)

The trial court then set forth further in its conclusions of law the following:

“Wherefore, the court reaches the conclusion that defendant should be allowed to offset against the rent due to the plaintiff that amount expended for repairs which could have been completed within the sixty day period which would be two-thirds of the total amount expended for repairs, requiring ninety days to complete without restriction.” (Emphasis supplied.)

It was upon this process of reasoning and construction of the contract that the court found that the defendant was entitled to a credit of only $11,619.02 out of a total expenditure of $17,428.50. Thus, it appears that the trial court by construction placed a limitation upon the asserted right of the defendant to deduct the full cost of the repairs described in exhibit “A,” attached to and made part of the lease. Inasmuch as the contractual provision of the lease does not, by the language employed, contain such a limitation, two questions of law aré presented; first, is the agreement so ambiguous and uncertain in its terms and provisions as to require judicial construction, and, second, did the trial court err in its conclusion that plaintiff was limited by the agreement to an offset of only two-thirds of the total sum expended for repairs?

In the review, we must bear in -mind that the action is for money only, and that this appeal is before this court on questions of law only. Consequently, where there are disputed questions of fact, this court can not proceed to weigh the evidence and reach an independent judgment as to the facts as on a trial de novo. That is solely the function of the trial court. As heretofore stated, the trial court found that the affirmative defenses asserted by plaintiff in its amended reply to defendant’s cross-petition to the effect that defendant acted in bad faith by preventing plaintiff from making the repairs was not substantiated by the evidence and that the conduct of defendant was not such as to excuse the plaintiff from making the repairs.

The majority of this court, upon a careful consideration of the entire record, is very definitely of the opinion that the evidence amply supports these findings. Therefore, we cannot say that the findings of fact in favor of defendant are contrary to the manifest weight of the evidence. Accordingly, we think no good purpose will be served by an extended analysis or discussion of the evidence. Neither do we think it necessary to attempt to rationalize the motives which may have actuated the conduct of the respective parties in relation to the controversy. Suffice it to say that it is not within our province to say how we would have resolved these questions of fact were we sitting as trial judges.

Proceeding now to a determination of the first question of law posed above, it is our opinion that the language employed by the parties in defining the provisions relating to repairs by the lessee is not so uncertain or ambiguous as to .require resort to rules of judicial construction. This being true, it was the function of the trial court to give force and effect to the plain terms and conditions of the contract freely entered into by the parties.

This brings us to a consideration of the provisions of the agreement relating to the repair and improvement of the leased premises. By its terms the lessor agreed:

(1) To put passenger and freight elevators in good working condition in compliance with ordinances and laws of the state.

(2) To make the repairs specified in exhibit A.

(3) To commence repairs within 15 days after receipt of written demand.

(4) To complete repairs within 60 days after demand.

(5) That if repairs are not begun within 15 days, lessee may make such repairs and deduct the cost thereof from the rentals payable under the lease.

(6) If the repairs are commenced by lessor and not finished within the period specified, lessee may likewise complete the same and deduct the cost thereof from the rentals payable.

(7) That all such rentals shall be abated for the period that such repairs shall remain uncompleted after the expiration of 60 days after receipt of such written demand.

It is very important to note from this analysis of the obligations of the lessor that if it undertook to make the repairs and improvements, there was an obligation imposed upon it to do so within a period of 60 days, but, upon failure of lessor to fulfill the terms of its agreement in this respect if lessee undertook to make them, a corresponding obligation was not placed upon lessee to do so within 60 days. Thus it is difficult to understand why the trial court in its conclusions of law so held because thereby it injected an issue which neither of the parties had raised in the pleadings, evidence, or briefs. Reading into the agreement such a limitation of lessee’s rights is wholly unwarranted by the context. Under the issues made by the pleadings, there could logically be no reason for a compromise finding or judgment.

Under the issues made by the pleadings, and, on this appeal, the plaintiff is entitled either to a recovery of the full amount sued for, or, none at all. Conversely, the defendant is entitled either to a full setoff against the accrued rentals, or none at all. The issues made by the parties are as clear-cut and simple as that. There could be many good reasons why a limitation as to time of completion was not imposed by the agreement upon lessee, one of which is, that by the terms of the contract, the primary obligation was assumed by the lessor to make the repairs or improvements to its own building. It was only in the event of default of this primary obligation by lessor that lessee was given the right to proceed, in which case, so far as its obligations were concerned, it could do so without restriction as to time, so long as it deducted only the cost of repairs from the accrued rentals. It is the law under such circumstances as are here shown, where no specific amount was agreed upon, that the repairs and improvements should be made at a reasonable cost. But no issue was made in the pleadings or by the evidence that the sum of $17,428.50 expended by defendant for cost of repairs was unreasonable. In other words, there was no denial of the cost of the repairs, but denial only of the right to charge the cost thereof against the rentals. These repairs were in the nature of permanent improvements which certainly enhanced the value of the property, although the same was sold by plaintiff before the expiration of the lease. Furthermore, the assertion that repairs and improvements were not made as expeditiously as possible in relation to the abatement of rent during such period of construction and repair becomes inconsequential in view of the fact that the sum total of the unpaid rent is less than the cost of the repairs made. We, therefore, conclude that the time element relating to lessee’s right, to make repairs under the circumstances here shown is without material significance. The cost of the repairs was the important and controlling factor, inasmuch as the cost thereof was by agreement to be deducted from the rentals. But, regardless of these considerations, the plain terms of the contract must govern and the court is without power to read into the contract an intention that the parties themselves did not express therein. If it is contended that so far as the plaintiff is concerned, the contract was an improvident one because no time limit was placed upon the defendant within which the repairs should be commenced or completed, the answer is obvious.

It is fundamental that courts may not extend their jurisdiction and powers to construe plain and unambiguous language to relieve parties competent to contract from hardship, and courts may not relieve them from an improvident agreement in the absence of fraud or bad faith. This proposition was succinctly declared by our Supreme Court in Ullmann v. May, 147 Ohio St., 468, 72 N. E. (2d), 63, the first and second paragraphs of the syllabus of which are as follows:

‘11. Where a written agreement is plain and unambiguous it does not become ambiguous by reason of the fact that in its operation it will work a hardship on one of the parties thereto and corresponding advantage to the other. (Ohio Crane Co. v. Hicks, 110 Ohio St., 168, approved and followed.)

‘ ‘ 2. Courts do not relieve a party competent to contract from an improvident agreement in the absence of fraud or bad faith.”

See, also, the following quotation from 12 American Jurisprudence, 749, Contracts, Section 228, and supporting cases thereunder, cited at page 749 et seq.:

‘‘Interpretation of an agreement does not include its modification or the creation of a new or different one. A court is not at liberty to revise an agreement while professing to construe it. Nor does it have the right to make a contract for the parties — that is, a contract different from that actually entered into by them. Neither abstract justice nor the rule of liberal construction justifies the creation of a contract for the parties which they did not make themselves or the imposition upon one party to a contract of an obligation not assumed. Courts cannot make for the parties better agreements than they themselves have been satisfied to make or rewrite contracts because they operate harshly or inequitably as to one of the parties. If the parties to a contract adopt a provision which contravenes no principle of public policy and contains no element of ambiguity, the courts have no right, by a process of interpretation, to relieve one of them from disadvantageous terms which he has actually made.

“There is no right to interpret the agreement as meaning something different from what the parties intended as expressed by the language they saw fit to employ. ’ ’

See, also, 9 Ohio Jurisprudence, 397, Contracts, Section 173, and supporting cases therein cited at page 397 et seq., as follows:

“Where the meaning of a contract,is clear upon its face, there is said to be no need, nor right, of construction. It has been stated that ‘the first general maxim of interpretation is that it is not allowable to interpret what has no need of interpretation. When a writing is worded in clear and precise terms, when its meaning is evident and tends to no absurd conclusion, there can be no reason for refusing to admit the meaning which it naturally presents.’ ”

Proceeding to the second question presented, it is our conclusion that the trial court erred in attempting to construe the contract which, on its face, is plain and unambiguous, because thereby an unwarranted legal issue was erroneously injected which had not been made an issue by the pleadings or evidence. The disputed issues of fact having been determined favorably to the defendant, there remains only a question of law, namely, a proper application of the terms of the agreement relating to repairs by the lessee. On this basis, the defendant is entitled under the facts as found by the trial court and the provisions of the lease contract to full credit for the cost of repairs, which, being in excess of the accrued rentals, creates a complete setoff in favor of defendant on its cross-petition against the rentals claimed by plaintiff in its petition.

For these reasons, the judgment of the Common Pleas Court is reversed as contrary to law, and, proceeding to enter the judgment which should have been rendered by the Court .of Common Pleas, final judgment is rendered for defendant.

Judgment reversed.

Kovachy, J., concurs.

Skeel, J.,

dissents. I dissent from the conclusions of the majority as to the interpretation of the repair provision of the lease and the rights and obligations of the parties thereunder.

The evidence, most of it documentary, shows that the defendant occupied the premises from the dates of the several leases, using the first floor as a retail storeroom for its meat and merchandising business, and the basement and second and third floors for storage purposes.

In July 1946 defendant asked for an extension of the lease, stating that it contemplated making extensive alterations which would not be justified with the five years remaining under the lease. Nothing was said about repairs in this request. In August, the request for extension was refused. Whereupon, on August 13, 1946, defendant, through its counsel, in a letter concerned primarily with securing a substantial extension of time of occupancy, referred to the repair provision, calling attention to the specific paragraph in the lease providing for. repairs and then saying: “When you have examined this we shall be glad to hear further from you as to your disposition if formal demand were made for the making of these repairs.”

Thereafter, defendant, on August 29, 1946, gave written notice that the repairs to the second and third floors called for by the lease as exemplified by an architect’s drawing attached to the lease and designated as exhibit “A” should be made at once.

On August 30, the plaintiff addressed a letter to the defendant saying they had sent workmen to start the work, but the defendant refused to permit them to begin. On September 13,1946, the plaintiff informed the defendant that the repairs called for by the lease would require government approval under the Dnited States Civilian Production Administration. After an application was made for leave to do the work and some negotiations had, the Civilian Production Administration refused to allocate materials necessary for these repairs as shown by their letter to the plaintiff dated October 16, 1946.

It was, however, indicated by Civilian Production Administration that some part of the work might be done, but the defendant by letter dated February 7, 1947, said that such limited repairs would not be of any value to the defendant. There is considerable correspondence in the record between October 1946 and February 1947 wherein the defendant continued its demand that the repairs be done, or it would proceed to do them under authority of the lease. On February 27, 1947, the Regional Compliance Director of Civilian Production Administration wrote a letter directly to the defendant in which the defendant was notified in part as follows:

“Accordingly it is our responsibility to caution you that the beginning or carrying on of such activity unless authorized will be construed as a violation of the order.”

The Civilian Production Authority’s control of the use of building materials for construction and repair work of this kind came to an end on June 27, 1947. However, by this time negotiations had been commenced for the purchase of the building by the defendant. These negotiations continued until August 11, 1948, when the defendant notified the plaintiff that the defendant would not purchase the building because a lease “By Neisner Bros, creates too many problems to make a purchase by my clients practical. ’ ’ This letter continues: “However, as you know, the lease on the premises to our clients extends to 1950. They would like at this time to consider the possibility of extending their lease if your clients would give this matter their consideration. ’ ’

During the entire period of negotiations to purchase the property over a period of about a year and a half, not a thing was said about the repairs until after the defendant’s letter of August 11, 1948, above quoted m part. Thereafter, on October 30, 1948, the defendant notified the plaintiff by registered mail to begin the repairs. The plaintiff refused to proceed on the ground that the defendant had by its conduct waived the right to enforce the repair provisions of the lease.

On November 20, 1948, the defendant notified the plaintiff that more than 15 days had elapsed since its letter of October 30,1948, and that the defendant would therefore proceed with the work and charge the cost against the rent thereafter accruing. The defendant then entered into a contract with J. H. Dickson Company to make the repairs which the defendant claimed were to be made, upon notice, under the lease. The contract was dated December 15, 1948, when there was but one year and nine months left for the defendant to occupy the property under the lease.

The contract limited the contractor from doing more than $1,800 worth of work, including cost of materials, in any one month or from issuing purchase orders for materials for more than $600 at one time without the consent of the defendant, the contract being subject to cancellation upon five days notice and the work to be suspended on one day’s notice., The work was to be done on the second and third floors separately, that is, the second floor was to be repaired as outlined in 16 items set forth in-the contract, each item to be done in the order set forth in the contract, and, when finished, the same order was to follow in doing the work on the third floor. The contract was made without any regard to economy in accomplishing the repairs or the benefits the defendant would be expected to derive in the greater enjoyment of the use of the premises when improved. In fact, at the rate the work was being done the repairs would, in all probability, not have been completely finished within the remaining time of defendant’s occupancy. It is reasonable to conclude that defendant did not expect to enjoy any benefit from the repairs, but that they were being done in this manner to compel plaintiff to extend defendant’s lease.

After the negotiations for the sale of the property between the parties was terminated without success, plaintiff entered into an agreement to sell the property to Bryden Michigan Building Company, the sale being concluded October 20, 1949. Defendant was notified to pay rent from that date to the new owner and demand was made for the unpaid rent from December 7. 1948, to the date of the sale. On October 20, 1949, the total of rent unpaid was $16,275.92. During the same period of time the defendant claims to have expended $17,428.50 for repairs.

The trial court in stating its conclusions of fact and law held that the repairs contemplated to be done under the lease were such as could have been accomplished in 60 days. An officer of the contractor employed by defendant testified that if no restrictions had been placed on the contractor, the work that was done could have been done in 90 days at the most. Therefore, the court held that, under the lease, the defendant was entitled to a credit of two-thirds of the funds expended for repairs. The court determined this amount to be $11,619.02, which when deducted from the rent due and unpaid with interest due on the rent, entitled plaintiff to a judgment in the total sum of $5,541.69.

1 concur with the majority that the trial court was in error in finding that the lease, in the paragraph dealing with the subject of repairs, provided that defendant was entitled to be repaid only for such of the repairs required to be made upon notification by the lessee were those that could be reasonably completed in 60 days. Exhibit “ A, ” attached to the lease and incorporated within its terms by reference, designated the repairs that were to be made if and when requested by the lessee. The promise of the lessor was that the repairs as designated would be made within 60 days from the date of notice, and work was to begin within 15 days after notice so that if the lessor did not begin the work until the 15th day after notice, only 45 days would remain within which to do the work as contemplated by the agreement. But there can be no doubt that the repairs to be made were those specified in exhibit “A.” Failure to complete such repairs within the time specified gave the defendant certain other rights, but there is no doubt as to what repairs were to be made. The court was, therefore, clearly in error in its conclusion.

Four distinct obligations are provided for by the repair provisions of the lease:

1. The repairs to be made when requested by lessee were set out in exhibit ‘'A.”

2. If the lessee wanted the repairs made it was to give notice of such demand whereupon the plaintiff had 15 days within which to start the work, it being also provided that the repairs were to be completed 60 days from date of the notice.

3. If the lessor failed to start the work within 15 days or complete it within 60 days from the date of the notice, the lessee could step in and make or complete such repairs.

4. From the time the lessee took over upon lessor’s default until the work was done, the rent was to be abated and whatever cost was expended by lessee in making the repairs was to be deducted from rents thereafter payable under the lease. There was to be no personal liability on the part of the lessor for such expenditures by the lessee.

It is clear from the foregoing that the parties were providing for a means by which the lessee could, at its request, require the repair of the property to enhance its usefulness for the defendant’s benefit.

The repairs were not to be. made as a means of preserving or benefiting the property. The lessee’s interest was the sole purpose of this provision of the lease.

It must also be observed that time was of the essence in the performance of the repair provisions. The work was to be completed in 60 days from the date of notice and failure on the part of the lessor to start or finish the work in the agreed time gave the lessee the right to step in and do the work so that it would be promptly done. The lease also provided that from the end of the 60-day period after notice until the work was completed, the rent was to be abated. These provisions show clearly that time was of the essence in making the repairs. It should also be noted that the lessor did not promise to be indebted to and pay the lessee for the money expended by it in case of lessor’s default in its promise to make repairs and the lessee should make them as provided by the lease. The provisions of the lease were to the effect that whatever money the lessee expended in making the repairs or to complete them because of lessor’s breach was to be deducted from the rentals payable under the lease, so that if the rent was abated until the work was done, there would be no funds out of which the lessee could be paid for its work until the repairs were completed. Tt is a natural inference from these provisions that it was the intention and understanding of the parties that the work should be promptly done.

The record gives support to the plaintiff’s claim that defendant acted in bad faith in demanding the repairs and in making them upon the claimed default of the lessor when and in the manner in which they were made. It is claimed that the defendant’s sole purpose was to try to force the lessor to grant an extension of the lease. Bad faith, however, even if shown in demanding performance of a promise made in a contract is no defense to liability for breach of such promise. The lessor agreed to make the repairs and admittedly refused to do so claiming the right so to do. Whether or not the defendant acted in bad faith and, by this and other conduct, waived the right to the repair provision of the lease, is a question of fact which the court resolved against the plaintiff. It is my conclusion that such holding was against the manifest weight of the evidence.

The question remains as to whether the defendant’s conduct in making the repairs comes within the authority of the lease. The contract for repairs was made by the defendant so that by its terms the work would be dragged out over a long period of time, many months beyond which would be reasonably necessary to do the work under all the surrounding circumstances. An examination of the defendant’s contract with the construction company showed a studied purpose to expend an amount each month for repairs equal to the rent without giving consideration to the fact that such dilatory process was unduly extending the time in which the rent was abated and also depriving the defendant of any benefit resulting to it from the repairs if and when finished. Not only was the rent abated until the repairs were completed, but thereafter the cost could be deducted from rent then coming due. If the defendant desired to make the repairs, as he had a right to do upon default by plaintiff, it was his duty to proceed with due diligence, looking to a completion of the work at the earliest reasonable date. This, the defendant did not do.

The plaintiff, however, was in default and the defendant did start the work as it had the right to do, so that the plaintiff’s right to rent during the period for which this action is brought must be reduced by the abatement clause for the time within which the defendant could have, in the exercise of due diligence, completed the work that was done within the provisions of exhibit “A.”

The defendant’s answer claims no right against the plaintiff for the money expended for repairs or that there was any rent money due against which the cost of repairs could be set off. The answer provides:

“* * * that because of the plaintiff’s failure to commence said repairs within said period, defendant on or about the first day of December, 1948, commenced the repairs specified in ex. ‘A’ attached to the aforesaid lease; that the defendant continued said repairs from said time through October 20, 1949 and paid the cost of said repairs to the extent of eight hundred and eighty dollars ($880) for each of the months for the period commencing December 8, 1948 and through October 20,1949.

“Defendant further says that by reason of the provisions of the aforesaid lease of May 28, 1937, the rental to plaintiff was by the agreement of the plaintiff abated during the period commencing December 8, 1948 through October 20, 1949 and that by reason thereof, defendant has been fully discharged of its obligation to pay any amounts to plaintiff under the aforesaid lease of April 15, 1935, from December 8, 1948 through October 20, 1949.”

The same allegation is found in the answer to the second cause of action as to the abatement of the rent under the lease of May 28, 1937.

It is to be seen therefore that the defendant’s defense is based entirely on the right to abate the rent until the repairs were finished. No claim is made, or could be, that the amount expended should be set off against the rent as it accrued during the time the work was in progress, because the defendant’s pleading alleged that during the period under consideration, all rent was abated.

The majority opinion expresses the view that there is no ambiguity in the repair provision of the lease which in part provides that the lessor “ * * * will commence said repairs within fifteen days after receipt from the lessee of written demand so to do and will complete said repairs within sixty (60) days after receipt of such written demand, and further agrees that if said repairs are not begun within such fifteen day period, lessee may make such repairs, or, if commenced and not finished within the period hereinbefore specified, may complete the same and deduct the cost thereof from the rentals payable hereunder and under the other leases hereinbefore mentioned, and the lessor further agrees that all such rentals shall be abated for the period that such repairs shall remain incompleted after the expiration of sixty (GO) days after receipt of said written demand,” followed by certain exceptions, here not important. The question must be stated as follows. Having undertaken to make repairs, can the lessor drag them out over a long period of time, thus abating the rent for longer than would be necessary in the exercise of due diligence through such dilatory tactics? Certainly such an interpretation of the above-quoted repair provision would bring about a result that could not have been contemplated by the parties when the lease was executed.

The lessee, having undertaken the repairs, owed the duty to proceed with them or such of the repairs as were wanted within the repair provision with due dispatch and in as economic a manner as would be reasonably possible. The defendant owed the duty not to cause the rent to be abated longer than was reasonably necessary. This the defendant did not do as is evidenced both by the allegations of the answer where an abatement of rent is claimed for 11 months (the defendant ’s own witness testified the work that was done could have been done at the most in three months) and the terms of the contract between the defendant and its contractor employed to make the repairs.

The manner in which the defendant proceeded with the work was not in compliance with the repair provision of the lease. It is evident, however, that the defendant did start the repairs as it was its right to do so that the rent was abated for the period of time beginning 60 days after notice to the plaintiff until sufficient time had elapsed from the date of notice to, in the exercise of reasonable diligence, complete the work agreed upon or so much of the work as defendant desired. The amount of the rent thus abated must be credited against the total amount due. It must also follow that the reasonable cost of whatever work was done within that period during which the rent was rightfully abated must be deducted from the rent accruing after such period had come to an end.

One other question seems clearly presented by the pleadings and that is the question of whether the defendant’s dilatory contract for making the repairs, seeking as it did only to cancel the rent as it came due, does not require an entirely different measure of damages because of the plaintiff’s breach than was applied by the court or is suggested by the foregoing opinion.

As heretofore stated, the repairs called for by the lease were to be, if made, for the benefit of the lessee. It must be presumed that when made the lessee would have a more profitable use of the property. Whether they were made depended entirely upon the lessee. If no request was served on the lessor there was no duty on plaintiff’s part to make them.

It would be a reasonable deduction in considering the defendant’s contract with the J. H. Dickson Company, that the defendant did not intend to derive any benefit from the repairs being made in the dilatory fashion provided by that agreement and that the sole purpose of compelling the work to be done was to force an extension of the lease. Delaying the request for repairs until almost the very end of the lease and then contracting for the making of the repairs in such a way as to destroy any possibility of benefiting the defendant, and at the same time compelling the plaintiff to expend a large sum of rent money for repairs which it may prefer not to have made at the very end of the lease, puts a heavy burden on the plaintiff with no benefit whatever to the defendant. Under such circumstances, if the facts are found to be as just stated, the defendant would owe the duty of mitigating the damages.

Williston, in his work on Sales (Vol. 3 [Rev. Ed.], 265, Section 588), states the rule as follows:

“If the plaintiff by taking one line of conduct may secure such advantage as the contract entitles him to at less expense to the defendant than if another course is pursued, the plaintiff should be allowed only damages based on the former course.”

On the evidence, as disclosed- by the bill of exceptions, the question of the rule of damages to be applied to the plaintiff’s default should have been given consideration by the trial court.

For the foregoing reasons, the judgment should be reversed and the cause remanded for further proceedings according to law.


author: Matthews, P. J.

text:
    Rankin, Appellee, v. Sander, Appellant.
    (No. 7807
    Decided November 23, 1953.)

      Messrs. Peck, Shaffer & Williams and Mr. Leonard Gartner, for appellee.

      Messrs. McIntosh, Moore & Katz, for appellant.
   Matthews, P. J.

This is an appeal from a judgment for the plaintiff for the amount of damage to his automobile, resulting from a collision between it and an automobile operated at the time by the defendant, who at the time was a police officer of the city of Cincinnati.

The bill of exceptions shows that the following constituted all the evidence introduced at the trial:

“Plaintiff, to maintain the issues on his part, introduced the following evidence through himself and a passenger in his car named Margaret McCarthy; that they had driven in the car northwardly on Durrell avenue; that they had made a right hand turn on Gilbert avenue; that as they were going in a generally eastwardly direction on Gilbert avenue after having made the turn, they saw a vehicle coming toward them rapidly; that he pulled the car as far over to the right, side as he could possibly do so and stopped; that he saw a red flashing light on the vehicle coming to him ; that the vehicle put on its brakes and slid into the car of plaintiff; damaging it in the sum of $500.58; that the car that was approaching him and collided with his car was a police car operated by a policeman in full uniform.

“Defendant maintaining issues on his part introduced that he was a police officer of the city of Cincinnati ; that he received a radio call while he was driving southwardly on (Gilbert avenue to go to 300 McGregor avenue on a call of trouble; that he had his red light flashing; that his siren was going when he collided with the automobile of the plaintiff.

“The police teletype message No. J-4781, showing a call to patrolman Albert Sander directing him to go to 300 McGregor avenue on a ‘Trouble Run’ was introduced in evidence. ’ ’

It is manifest that whether the defendant is liable is dependent upon the proper construction of Section 3714-1, General Code, in effect at that time, which provided that:

“Every municipal corporation shall be liable in damages for injury or loss to persons or property and for death by wrongful act caused by the negligence of its officers, agents, or servants while engaged in the operation of any vehicles upon the public highways of this state under the same rules and subject to the same limitations as apply to private corporations for profit but only when such officer, agent or servant is engaged upon the business of the municipal corporation.

“Provided, however, that the defense that the officer, agent, or servant of the municipality was engaged in performing a governmental function, shall be a full defense as to the negligence of members of the police department engaged in police duties, and as to the negligence of members of the fire department while engaged in duty at a fire or while proceeding toward a place where a fire is in progress or is believed to be in progress or in answering any other emergency alarm. And provided, further, that a fireman shall not be personally liable for damages for injury or loss to persons or property and for death caused while engaged in the operation of a motor vehicle in the per-. formance of a governmental function and provided further that a policeman shall not be personally liable for damages for injury or loss to persons or property and for death caused while engaged in the operation of a motor vehicle while responding to an emergency call.”

While this section was declared to be constitutional in McDermott v. Irwin, 148 Ohio St., 67, 73 N. E. (2d), 86, it has never, so far as we are advised, been subjected to a critical analysis to determine the exact meaning of an “emergency” that would relieve firemen and policemen from liability for negligence in the operation of motor vehicles. In Staudenheimer v. City of Newark, 62 Ohio App., 255, 23 N. E. (2d), 845, it was held that the municipality was not liable for the negligence of firemen in operating a fire truck en route to an engine house, other than the one at which it was usually stationed, to replace a truck which had been to a fire. It was held that the replacing truck was being operated in a governmental capacity and was answering an emergency call.

Now it is clear that by the first paragraph of this section the Legislature intended to waive for municipal corporations their sovereign right and to place them on the same plane as private corporations as to liability for wrongful acts caused by negligence of their officers, agents, or servants while operating vehicles upon the public highways when such officers, agents, or servants were engaged upon the business of the municipal corporation. And standing alone and unmodified, it would impose liability for negligence upon every municipal officer and employee engaged in the operation of a vehicle upon the public highways on municipal business.

The purpose of the first sentence of the second paragraph is to continue municipal exemption from liabili1y for ads of members of the police and fire departments under certain circumstances. As to members of the police department the defense that the officer, agent, or servant was engaged in a governmental function was available in all cases when the officer, agent or servant was operating the vehicle while “engaged in police duties, ’ ’ and as to members of the fire department when they were “engaged in duty at a fire or while proceeding toward a place where a fire is in progress or is believed to be in progress or in answering any other emergency alarm.”

It is to be noted that the defense of governmental function available to municipalities as to acts of members of the fire department is limited to instances of emergencies, but no such limitation is expressly made an element of the defense of governmental function based on acts of members of the police department. The defense is established on proof that the officer, agent, or servant was engaged in police duties. The reason for making this distinction probably results from the fact that policemen are public officers, deriving their authority from and representing the sovereign in enforcement of the law and preserving public tranquility, and, are, therefore, performing a governmental function that has been recognized as such from most ancient times.

So far as we know, the decisions have been in harmony on the status of the police department (Bell v. City of Cincinnati, 80 Ohio St., 1, 88 N. E., 128, 23 L. R. A. [N. S.], 910; Aldrich v. City of Youngstown, 106 Ohio St., 342, 140 N. E., 164, 27 A. L. R., 1497; but the same harmony is not found in cases involving fire departménts (Fowler, Admx., v. City of Cleveland, 100 Ohio St., 158, 126 N. E., 72, 9 A. L. R., 131; Frederick, Admx., v. City of Columbus, 58 Ohio St., 538, 51 N. E., 35). That this exemption from liability for the acts of officers performing customary, police duties exists in most jurisdictions is made manifest by the numerous citations to the text of 38 American Jurisprudence, 317, Section 620, while the scope of the exemption for acts of members of fire departments has occasioned a plethora of contrary decisions. In 38 American Jurisprudence, 322, Section 623, at page 325, it is said:

“Some cases make the qualification to the general rule that to excuse the municipality from liability, the act complained of must have been incident to the fire service. In some jurisdictions, the rule is stated to be that a municipality empowered but not required by law to maintain a paid fire department operates such department in its proprietary rather than governmental capacity, except when the department is engaged in the extinguishment of fires, going to and from the scenes of such conflagrations, ór in testing equipment for use on such occasions.”

So it seems that the Legislature considered it wise to mark out more definitely the field of nonexemption in operating a fire department vehicle than was required in relation to the police department.

Now, notwithstanding the municipality could shield itself from liability while in the performance of a governmental function, the officer or agent had no such defense against liability for his torts committed under color of law and was personally liable for his negligence in performing official duties. United States Fidelity & Guaranty Co. v. Samuels, 116 Ohio St., 586, 157 N. E., 325, 53 A. L. R., 36.

It is against this background that the exemption of firemen and policemen contained in the last sentence of Section 3714-1, General Code, must be interpreted. It will be observed that the governmental function of the fire department as a defense to the municipality is limited to emergencies, whereas, when it is sought to charge the municipality for the acts of a policeman it is a sufficient defense to prove that he was engaged in the routine police duties without proof of any extraordinary circumstances or emergency. Or, perhaps, it could be said that emergencies are normal and routine in the life of a policeman. At any rate, the Legislature, while exempting the municipality from liability upon proof that the policeman was performing police duties at the time, saw fit by the last clause of Section 3714-1, General Code, to grant the policeman a narrower exemption by requiring him to prove that he was engaged at the time in operating the motor vehicle while responding to an emergency call.

From the record, it appears that the defendant was engaged in routine police duties — was patroling his beat — when he received a radio message from his superior officer that there- was “trouble” at 300 Mc-Gregor avenue and ordering him to proceed to that address. In the department it was described as a “Trouble Run.” Upon receiving this order, the defendant ceased patroling his beat and was engaged in answering the call when this collision occurred.

•Was defendant at the time responding to an emergency call? He was certainly diverted from that in which he was engaged by the call and the reason assigned was that there was something happening at that precise time at 300 McGregor avenue, justifying the directive to discontinue patroling and to proceed at once to that address. Had this collision occurred while the defendant was engaged in his usual duties of patroling his beat — as he evidently was before this call came — this statute would not have availed as a defense to his negligence. There would have been present no special urgency justifying a disregard of the usual duty to exercise ordinary care, but this call supplied the urgency for swift and immediate action if the purpose of the call was to be accomplished by the enforcement of the law.

The ordinary meaning of “trouble” carries with it the thought of discord, disturbance, and tumult, and when used in a directive to a police officer undoubtedly connotes a violation of the law. It would seem that if the exemption is to mean anything, it must include a “trouble run” in response to a call of this description. It certainly answers the dictionary definition of the word: “An unforeseen occurrence or combination of circumstances which calls for immediate action or remedy. ’ ’

We are of the opinion that the defendant at the time was responding to an emergency call and that he was, therefore, not liable for the damage done while so responding.

For these reasons, the judgment is reversed and, as the evidence is uncontradicted, final judgment is entered for the defendant.

Judgment reversed.

Ross and Hildebrant, JJ., concur.


author: Hunsicker, J.

text:
    In re the Mortgaging of Certain Real Estate of The Wooster Baptist Temple: Nussbaum, Appellant, v. The Wooster Baptist Temple, Appellee.

      (No. 1124
    Decided June 24, 1953.)

      Messrs. Critchfield, Critchfield, Critchfield & Johnston, for appellant.

      Messrs. Funk S Funk, for appellee.
   Hunsicker, J.

This appeal on questions of law from the Common Pleas Court of Wayne County, Ohio, has been submitted to this court on the transcript of the docket and journal entries and the briefs of counsel.

The Wooster Baptist Temple of Wooster, Ohio, an incorporated religious society, filed its petition, pursuant to the provisions of Section 10051 et seq., General Code, seeking authority to mortgage land and buildings owned by the church. Millen Nussbaum, who had an action pending in the same court for the balance he claimed was due him for constructing the church, filed a motion in the trial court asking, the right to file an answer to this petition.

The trial court refused to grant Nussbaum permission to intervene in the action, and denied him the right to file his answer, or to be heard in the proceeding. The court granted the petition of the church, and entered a judgment giving authority to the petitioner, The Wooster Baptist Temple, to mortgage the church property. The court also approved the report of the church trustees, which report stated that they had executed the mortgage for which authority was given.

Nussbaum brings an appeal to this court on questions of law, saying that :

“* * * the Common Pleas Court of Wayne County erred * * * to the prejudice of the substantial rights of appellant.

“ (1) In overruling appellant’s motion, denying him the right to file an answer or pleading, and denying him the right to be heard in the cause. ’ ’

There have been few reported cases wherein the precise question herein has been discussed. Statutes in other states, although generally similar to Ohio statutes, are difficult to reconcile with the specific wording of our law. We do, however, find some cases in other jurisdictions which discuss the problem we have before us.

In the case of In re Ash (1918), 82 W. Va., 516, 96 S. E., 797, the court said:

“1. In a proceeding by church trustees pursuant to section 9, chapter 57, of the Code [section 3302], to sell the church property owned and held in fee simple, an adjoining land owner, as such, though holding under title derived from a common source, has no right to intervene therein or to be heard in opposing such sale. ’ ’

In a later case, Samples v. United Fuel Gas Co. (1925), 100 W. Va., 441, 130 S. E., 670, the Supreme Court of Appeals of West Virginia did permit a party to intervene in the proceedings to lease church lands after the trial court had refused such party a right "o intervene. The intervening party in that case had an interest by way of prior leases, which the court held could be protected in the proceedings to lease filed by the church trustees.

Under the present (1949) Code of West Virginia, there is now no provision for application to be made to the court for authority to sell church lands, but the earlier Code sections did provide for court approval. See: Revisers’ Note to Section 3497, and Section 3498, West Virginia Code of 1949.

In the case of In re St. Michael’s Church of Atlantic City (1909), 76 N. J. Eq., 524, 74 A., 491, wherein an action was brought under authority of the statute to sell certain lands devised to the church, and in which case a claimant was refused the right to intervene, the court said, at p. 528 of 76 N. J. Eq., p. 492 of 74 Atlantic Reporter:

“There is another reason why the petitioner cannot intervene in this cause, and that is, because no provision is made in the act under which these proceedings are taken for letting in anybody to defend. This being so, if Catherine Bloomer has any rights, they will not be affected by any order or decree that may be made in this cause.”

The statute under which that case was brought is now found in New Jersey Statutes Annotated (Permanent Edition), 15:14-9. It should be noted, too, that there is now no general statutory restriction in New Jersey on encumbering church property, and apparently no requirement for prior court approval. The present statutes relate principally to the sale of property held in trust for specific purposes.

In the state of New York the statutes are very explicit with respect to the rights and duties of religious corporations so far as their owning, encumbering and selling lands is concerned. These statutes are found in Book 50 of McKinney’s Consolidated Laws of New York. Section 12 sets out the present procedure employed in New York. Under the provisions of an earlier statute, in the case of In re Westminster Presbyterian Church, 137 App. Div., 301, 121 N. Y. Supp., 1039, and 168 App. Div., 823, 154 N. Y. Supp., 361 (an action to sell church property), the trustees of the Presbytery of New York intervened by permission of the court. In that case there was involved a question of title to the church property.

We have examined the statutes of many states relating to religious societies and the right to encumber their property, but we have been unable to find either uniformity in the statutes or any case in those several jurisdictions sufficiently helpful to be persuasive.

The Ohio cases cited by counsel (In re Baptist Church, 32 N. P. [N. S.], 491, and Sullivan v. Columbiana County Agricultural Society, 23 N. P. [N. S.], 49, 31 O. D. [N. P.], 213), do not assist us appreciably.

In the case of Wilansky, Trustee, v. Ansche Polen Congregation, 12 Ohio App., 301, 31 C. C. (N. S.), 526, the court, in commenting on Section 10051, General Code, said at p. 303:

“The proceeding in question was filed under the provision of Section 10051, General Code, which is the authority for the sale of property belonging to a religious society. The right of the trustees to file the petition is controlled by a majority of the members of the society. Every step in the proceeding to accomplish the purpose of sale is especially provided for by the statute. It can in no sense be considered an ordinary proceeding. It is not a proceeding whereby ‘a party prosecutes another.’ It was a proceeding not known to the common law, nor to equitable procedure, and is purely a creature of statute. If the trustees were agreed in making the application, and were a unit as petitioners, no adversary parties were necessary, yet they are required to proceed under Section 10051 of the Code to convey a good title. The only service required was to cause notice of the pendency of the petition to be published in some newspaper in the county where the real estate was situated, for four consecutive weeks before the application was heard. It is only in the sense of division on the part of the trustees that it could be considered as an adversary proceeding. ’ ’

And at p. 304, the court further said:

“The proceeding herein is not an ordinary proceeding. No summons is required to be issued. No party prosecutes another for the redress of a legal wrong. It is not the enforcement of a legal right. It is, in effect, but asking authority to proceed in a certain way directed by statutes, to effect a sale of church property, that title may be conveyed. It is not the punishment of a public offense. The proceeding lacks the elements contained in Section 11237, General Code, defining an action. ’ ’

The proceeding herein to mortgage the church property is not an action as that term is defined in the statutes, it is not adversary in character, and, except where there is a division within the board of trustees, it is not necessary to serve a summons. The notice of the application for authority to mortgage required to be published is, at least in part, to give notice of the acts of the congregation to those members who were not present when the authority to mortgage was voted.

In the instant case, Nussbaum is not a member of the congregation. His claim is that at some future time he may obtain a judgment against the church, and he says that his position as a judgment creditor will then be impaired by the mortgage the church executes.

The statute under which this action is brought (Section 10051, General Code), reads in part as follows:

‘ ‘ If upon the hearing of the case it appears that such sale, exchange, lease or incumbrance is desired by the members of the society or association and that it is right and proper that authority be given to accomplish it, the court may authorize the trustees or other officers of the society * * * to # * * incumber such real estate in accordance with the prayer of the petition and upon such terms as the court deems reasonable.'’7 (Emphasis ours.)

What is meant by the phrase “right and proper”? Does it mean “right and proper” for the congregation only, or “right and proper” also from the standpoint of those who have claims against the religious society?

The courts do not interfere in matters of faith, but they have always asserted their right to intervene in the temporal affairs of religious societies. 45 American Jurisprudence, Religious Societies, Section 40, and cases there cited.

Courts, under the usual day-by-day affairs of business concerns, do not step into their operations and regulate the borrowing of money. If the court, in an action under Section 10051, General Code, were open to every person who had a claim against a congregation, it would in effect be setting up the court as a clearing house and business manager of church property. No business concern must ask those who claim, or might claim, to be creditors, for permission to borrow money.

Nussbaum, in the instant case, cannot claim that he has a present interest in the real estate owned by the church by reason of the action he has pending in that court against the Wooster Baptist Temple. Under the rule previously announced by this court, “An action for money only is not within the doctrine of lis pen-dens.” Stone v. Equitable Mortgage Co., 25 Ohio App., 382, 158 N. E., 275, paragraph one of syllabus.

We therefore determine that the phrase “right and proper, ’ ’ as used in the statute, does not contemplate that persons in the situation of Nussbaum are necessary ■ parties to the proceeding to mortgage church property.

The trial court did not commit error prejudicial to the substantial rights of Nussbaum when it overruled his motion to be made a party in the proceeding and denied to him “the right to be heard in the cause.”

Judgment affirmed.

Doyle, P. J., and Stevens, J., concur.