author: WILDMAN, J.

text:
    MASTER AND SERVANT — RAILROADS.
    [Lucas (6th) Circuit Court,
    October 30, 1906.]
    Haynes, Parker and Wildman, JJ.
    Daniel A. Byrket v. Lake Shore & M. S. Ry.
    1. Rights of Employe Using Tracks as a Convenient Pathway.
    Where an employe of a railroad, while off duty, is directed to report at a certain place as soon as possible, and in complying with said direction walks along the tracks of the company as a matter of convenience and time saving, he is not within the course of his employment while on the said tracks, and the engineer of an approaching train is not bound to keep a lookout for him.
    [For other cases in point,'see 6 Cyc. Dig., “Master and Servant,” §§ 292-411; 7 Cyc. Dig., “Railroads,” §§ 1058-1061. — Ed.]
    2. Duty of Person on Railroad Tracks to Observe and Avoid Danger.
    If such employe, while using the tracks of the company as 'a convenient pathway to his place of destination, by the proper use of his faculties of hearing and vision would have had warning of an approaching train, the presumption arises, when he does not discover such a train and is injured by being struck by it, that he did not exercise due care; and the burden is on him to remove that presumption. And where no reasonable inference can be drawn from the evidence relieving him from that presumption and no claim is asserted that the engineer or others controlling the movement of the train had actual knowledge of his. danger, it becomes the duty of the court to direct a verdict for the defendant.
    [For 'other cases in point, see 6 Cyc. Dig., “Negligence,” §§ 293-335; 7 Cyc. Dig., “Railroads,” §§ 1080-1082. — Ed.]
    3. Duty of Railroad as to Persons on its Tracks.
    A railroad company owes no duty to an employe, or* other person, who is using its tracks merely as a convenient path of travel, to give notice by bell or whistle of an approaching train or to run at any particular rate of speed.
    [Syllabus approved by the court.]
    Error to Lucas common pleas court.
    C. A. Thatcher, for plaintiff in. error.
    Potter & Potter, for defendant in error.
   WILDMAN, J.

In this case which below was an action brought by Byrket for injuries claimed by him to have been sustained by reason of negligence of the defendant company, the plaintiff in error complains of the action of the court .below in several respects. The one especially argued is the court’s charge to the jury, at the close of the evidence in the case, to find in behalf of the defendant. Several of the other alleged errors are so closely connected with this that they may be treated as incidental to it, and our judgment is, that if the court was right in instructing the jury to find for the defendant, the other alleged errors were not prejudicial to the plaintiff even if the court was in any one of its rulings in those respects in error.

The plaintiff, Byrket, had been for several years in the employ of the defendant company, sometimes acting as brakeman, sometimes in the capacity of conductor upon some of its trains, and I think at one time was known as a pony conductor or the conductor of a pony engine. At the time of the unfortunate occurrence which has been made the basis of this-action, in which the plaintiff received severe injuries, he had been telegraphed to, while at Jonesville, Michigan, to come to Air Line Junction in Ohio, as soon as possible, and it was while proceeding to Air Line Junction that he received the injury for which he seeks damages-. He had arrived at the Union Station in Toledo and then proceeded to walk along one of the tracks of the defendant company from the Union Station to Air Line Junction, and it is indicated by the evidence that he designed at some place along this line to take an electric car, but he concluded that he could arrive at Air Line Junction, his destination, more speedily and readily by proceeding along the track, and his claim is, that in doing this he was complying with the requirements' of the defendant company; that he was in the discharge of his duty as an employe and that he had been instructed by the officials of the company that at all times when in discharge of the duties pertaining to his employment, he must keep upon the right of way. Our judgment is, that any such instruction was not to be construed by him so technically and that the general instruction that he was to proceed to Air Line Junction and arrive there as soon as possible, was to be construed according to its reasonable spirit and that he had a right to proceed by any ordinary means of safe transportation to the place of destination where he was required to report.

The principal question that is involved here requires some consideration of the nature of his duties while upon the defendant’s right' of way and track and of the correlative duties of the defendant company toward him while he was at the same place. He insists that his situation was much that of a person who would be at the time doing some- work for the company and that it was the duty of the engineer upon an approaching train to keep a lookout for him while he was upon the company’s track; and he attempts to fortify this claim by proof that it was a common custom for the employes of the company to use the track in that locality as a sort of a passage way from the Union depot'to Air Line Junction while going to or from their work.

The plaintiff claims that at the time of this occurrence he was walking upon a track known as the “east-bound track” and that the engine which struck him was coming from the east, moving westward, and the evidence shows those two facts. The defendant company had a right to move its trains upon whichever of these tracks it saw fit and in whatsoever direction it saw fit; it had the right, no matter what the tracks were called and no matter for what purpose it ordinarily used either one, to move its trains either east or west upon the so-called “eastbound” or the so-called “west-bound” track, although the circumstance that the engine was moving westwardly and upon what was usually treated as an “east-bound” track might be one circumstance- bearing upon the care due from the plaintiff and also might, under some circumstances, upon the asserted negligence of the defendant.

It is apparent from an examination of the numerous authorities in cases similar to the one at bar, that every case must stand almost upon its own footing, and it is not likely that we shall find cases that are upon all fours with one another, although counsel in argument assert oftentimes that one case is precisely like another in all its features. Much stress is laid by counsel for plaintiff in error upon the case of Lake Shore & M. S. Ry. v. Ford, 9 Circ. Dec. 786 (18 R. 239), which was decided by this court at the January term, 1899. The case has some features similar to those of the case at bar, but it has others dissimilar to the ones under consideration by us here. In the Ford case the com-ditions were 'such that the engineer of a train having knowledge of the fact that persons were accustomed to walk upon a track, was unable to distinguish persons upon the track until almost upon them; whereas in the case at bar there was no difficulty on the part of either the engineer or the man upon the track in discovering objects at remote distances. It is claimed, indeed, on behalf of the plaintiff in error, as one of the grounds upon which this judgment should be reversed, that he could see all the way from the point of injury to Air Line Junction, which was quite a distance away and that he was thereby apprised that no train was coming from that direction on the “east-bound” track, so that he had a right to conclude that it was safe for him to walk upon that track.

The conclusion must logically be drawn that if it was easy for him to see all the way to Air Line Junction, it was equally easy for him to see in the opposite direction, if he looked in the opposite direction at the time when the train that struck him was sufficiently near to manifest its approach. In his testimony there is an indication that he did look back about once every hundred feet, but in one part of his testimony he says that probably he went 15Ó feet from the time he last'looked ib'aek before the. engine struck him. Of course any statement of this kind is to be received and construed reasonably by the court. A man does not measure by paces the exact distance that he travels between the several times of using his faculties of observation, and it is probably impossible for the man to say how long a time had elapsed and how much distance he had traveled between one time of looking and another. But, however all this may be, it is manifest that if he had looked a sufficient time before he was struck to see the train’s approach,' there would have been no difficulty in seeing the danger and escaping the injury. There is nothing to indicate that he could not have leaped from the track if he had seen the train bearing down upon him. While it is claimed by the plaintiff that it would have been unsafe for him to walk upon either side of the track, or between the two tracks, by reason of certain circumstances which were given in evidence, there is no claim that in the immediate emergency of the train’s approach, if it had been observed, he could not have escaped to a place of safety by leaping upon the other track or by leaping to one side, even into a ditch if necessary.

The court did not, apparently, arrest the case from the jury or charge the jury for the defendant upon the ground of any holding by the court that, as a matter of law he was guilty of negligence directly contributing to or causing his own injury. The court puts it upon the other ground: That the defendant company owed no duty to a man situated as he was and acting as he was, of giving him notice, by bell or signal of the approach of the train. A large part of the argument of counsel for the plaintiff, orally and in his brief, is based upon the theory that it was the duty of the company to keep the bell ringing upon the locomotive at all points in the progress of the engine and trains from the Union Station to Air Line Junction. Is this law? Was it the duty of the company to apprise persons walking upon its tracks of the approach of the train by giving signals by either bell or whistle?

In connection with the holding by this court in 1900, in Lake Shore & M. S. Ry. v. Ford, supra, my attention has been called by one of my associates to an unreported case of this court in the year 1903 or about that year. The case is that of Ham v. Railway, which was decided first in the court of common pleas of Fulton county, and the case there was arrested from the jury and the jury instructed to bring in a verdict for the defendant company. This court reversed the case, which is said by one of the judges — Judge Haynes — to have been very similar in its aspects to the case at bar. The case was carried to the Supreme Court, on error, and the Supreme Court reversed the circuit court and affirmed the ruling of the common pleas in its holding that the defendant company was not liable to such a duty as. is sought- to be imposed upon it here towards persons in a somewhat similar position to that which this plaintiff in error occupied at the time of his injury. The decision of the Supreme Court, which is also unreported, was rendered in June, 1903. ' In the following October — what is said to be the January term, 1903, on October 13 — the Supreme Court rendered a decision in the case of Erie Ry. v. McCormick, 69 Ohio St. 45 [68 N. E. Rep. 571], which case we deem very analogous to the case at bar. It was a case of a man employed as a trackman, or track walker, for the defendant company, who was injured while engaged in walking upon its tracks; but whether in the direct discharge of his duty or not, does not appear clearly from the statement of facts reported. In the course of his traveling along The track, while in the discharge of his duty or going to or from his work, he had occasion to cross a bridge which was within the lines where he was required to work when he did work, as a track walker, exercising, I suppose, some duty of inspection of the track — that- is, to see that everything was in order and free from obstructions or defects. In crossing this bridge on the occasion in question, he was struck by an engine and killed. Now, it is not claimed on behalf of the plaintiff in error here, Byrket, that his duty to the defendant company had any relation whatever to its track or required him to be walking upon the track, except in so far as he asserts a claim that he was necessarily upon the company’s track in the carrying out of the injunction to stay upon the company’s track when he was in the company’s employment on duty and also when he was going to' a place to which he had been directed to go as soon as possible. As I have already said, we think he had the right to construe that instruction reasonably and go by reasonably safe methods, and that it was not designed in the order that he should travel all the way from Jonesville or from the Union Station to Air Line Junction on the company’s tracks, even if he could get to that place somewhat more speedily than, by traveling some other route or in some other way.

It would seem, that the ease presented by the representative of McCormick was perhaps a stronger ease, so far as this question is concerned, than the case at bar. McCormick’s duties ordinarily related to the track, and if he was upon the company’s track at the time of the colliding of the train with him and his death, in the direct discharge of his duties, then his. case was stronger than that of Byrket, who was, at the best, but simply traveling along the track as a pathway to the place of his destination.

It is the judgment of this court, under all the circumstances of this case, that he does not stand in precisely the same position with reference to the transaction that Ford did in Lake Shore & M. S. Ry. v. Ford, supra. There" are some circumstances here which would seem to have made it easier for Byrket to have apprised himself of the danger than •in the ease just mentioned, and we think that a strong presumption of negligence arose; in other words, that the proper exercise of his faculties of hearing and vision would have notified him before his danger. The presumption arises when he does not discover that danger, that he did not exercise these faculties, and the burden is upon him to remove this presumption when it so arises. It is true that sometimes it is an inference which is to be drawn by the jury that he did discover the fact. But, on the other hand, there are numerous eases that where no reasonable inference can be drawn that would relieve him from the presumption, it becomes the duty of the court to say so to the jury.

In the McCormick case the court seems to assume that the plaintiff was in some fault in remaining upon the bridge, and then the court, so holding, goes farther and holds that the company was not negligent— that it was not held to the exercise of that sort of care toward him that it would have been compelled to exercise under other circumstances.

In the third paragraph of the syllabus, on page 45, it is said by the court:

“In an action against a railroad company by one who, by his own fault is upon its track and in a place of danger, to recover for a personal injury caused by the failure of its employes operating one of its trains to exercise due care after knowledge of his peril, it is necessary to show actual knowledge imputable to the company. Cincinnati, H. & D. Ry. v. Kassen, 49 Ohio St. 230, distinguished.”

This leads me to call attention to the language of the petition which has been filed in this case, in which it is not clearly asserted that the engineer of the defendant company did in fact discover Byrket upon the track, and thereafter was guilty of negligence in not avoiding an injury to him. In one part of the petition it is said that:

The action of said conductor and engineer in so operating said' train was either wilful or so grossly negligent as to be wilful in its nature. ”

The pleader is speaking of the speed with which the train was run: that it was run at a high and excessive rate of speed and in violation of a certain ordinance of the city of Toledo, which provided that within the city limits the speed should not exceed six miles per hour. This question was also raised in the McCormick case: “That the speed of the train exceeded that limited by the ordinance of the city of Akron.” With regard to the claim of excessive speed and also the claim that the speed was unlawful as being prohibited by ordinance, Judge Shauck, speaking for the court, says, page 52:

“The petition and all the evidence having shown that McCormick was an employe of the company, engaged as a track walker, there should •have been no allegation in.the petition as to the omission of signals for the neighboring road crossing or of the violation of the ordinance regulating the speed of trains, because, by the fact- of his relation to the company, it was made to appear that he was not within the classes of persons for whom such signals are required to be given, or for whose protection the speed of trains is regulated. The omission of a duty does not constitute the foundation of an action unless it results in injury to one for whose protection the duty is imposed. This would seem to be elementary, and it is sustained by the decided cases. ’ ’

And he then cites the two cases of Baltimore & O. Ry. v. Depew, 40 Ohio St. 121, and Cleveland, A. & C. Ry. v. Workman, 66 Ohio St. 509 [64 N. E. Rep. 582; 90 Am. St. Rep. 602].

Again, in this petition, it is alleged:

“That the engineer in charge of the engine drawing said train did carelessly, wrongfully and negligently fail to keep a proper lookout for persons who might be rightfully upon said track. That plaintiff was in plain view of said engineer for such distance as that said engineer did see plaintiff, or, by the exercise of ordinary care, could have seen him.”

In other words, we are presented with an alternative by this pleader; there is no averment that the engineer did see Byrket, and if there had been such an allegation, there was perhaps no evidence that would have justified a finding that he did see him. But it is enough to say that the petition does not charge it. It is alleged:

“That said engineer carelessly, wrongfully and negligently failed to give plaintiff any warning of the approach of said train but ran the same in such manner as to strike plaintiff and throw him upon said track, and to allow said train to pass over him, inflicting injuries as hereinafter set forth.”

Now, going back to Erie Ry. v. McCormick, supra, and resuming the consideration of the language of Judge Shauck, we find, on pages 52 and 53, he says:

“Passing to a consideration of the ground upon which counsel for the administratrix now insist that the recovery might have been sustained, the general inquiry is, whether it is in accordance with the law which defines liability for the wanton and wilful infliction of injury. The concrete rule upon the subject is, that if one is upon the track of a railway company by his own fault and in peril of which he is unconscious, or from which he cannot escape, and these facts and conditions are actually, known by the engineer, it is his duty to exercise all reasonable care to avoid the infliction of injury. It does not impose the duty to exercise care to discover that one so upon the track is in a place of danger, bnt it does impose a duty to be exercised upon actual discovery. No matter if the rule did originate in considerations of humanity, it is an established rule of the law which does not unreasonably interfere with the rapid movements of trains, nor is it ordinarily difficult of application, if earnest and impartial efforts are made to apply it according to its terms and obvious import. With respect to the ground of liability now considered the court instructed the jury that the company would be liable if the engineer ought, by the exercise of ordinary care, to have seen the deceased in his perilous position and could, by the exercise of ordinary care, have stopped or checked the speed of the train so as to avoid the collision. Notwithstanding the manifest conflict between the instruction given and the rule, it is said that the instruction is authorized by Cincinnati, H. & D. Ry. v. Kassan, 49 Ohio St. 230 [31 N. E. Rep. 282; 16 L. R. A. 674].”

Now in the brief of counsel for plaintiff in error, before me, some consideration is given to Cincinnati, H. & D. Ry. v. Kassan, supra, and emphasis is put upon the language of the court in that ease holding the eompany to a knowledge -which ought to have been had by the persons in control of the train which caused the injury; but a careful consideration of the reasoning of Judge Shauck in the case in Erie Ry. v. McCormick, supra, clearly evidences that a proper construction of Cincinnati, H. & D. Ry. v. Kassan, supra, will not bear the interpretation which is sought to be put upon it by the counsel for plaintiff in error here. Kassan had fallen from the rear platform of one of defendant’s trains. The company was running two trains, in the same direction, about two hours apart. This injury disabled him from leaving his position of danger upon the track, and while in that dangerous position he was run down and killed by the following train. That. Kassan had fallen from the train and was in a place of danger, were facts actually known to the employes of the defendant company operating the 'forward train. There was ample opportunity to rescue him either by stopping the train from which he had fallen or by using the telegraph to communicate information of his situation to those in charge of the following train. The actual knowledge of the employes of the company in charge of the forward train was the company’s knowledge and that knowledge ought to have been communicated to the engineer of the following train, so that it may be said that it was a knowledge which, he ought to have had; but that is not saying that it was the negligence of the engineer in charge of the train; it was the negligence of the company itself in not communicating to him the information which he ought to have had so that he might thereby have saved his train from killing or injuring Kassan. Judge Shauck goes further and says:

“The phrase ‘ought to have been aware’ manifestly applies to those in charge of the following train, and implies the duty of the company to communicate to them its* actual knowledge of Kassan’s danger. This is entirely clear, not only from the peculiar facts of the case, but from the language of the opinion.”

I will not stop to read more. It is clear enough from what I have already read that the construction which is placed upon Cincinnati, H. & D. Ry. v. Kassan, supra, in the brief for plaintiff in error is not the ©ftnstruction which should be properly drawn from it. We think that the circumstances of Erie Ry. v. McCormick, supra, are so similar to those in the ease at bar that, if this case had been permitted to go to the jury, no verdict in behalf of the plaintiff in error, or judgment thereon, would have been permitted to stand by the Supreme Court, if the ease ever reached that court of last resort, because of the principles which are in Erie Ry. v. McCormick, supra, so clearly enunciated. And it is against the previous rulings .of this court, which it is not necessary to further consider;'it is enough to say that the last enunciation of the Supreme Court to which our attention has been called, or which we have found in our examination of the questions,' leads along the line of the holding at which we have arrived in this case, that the judgment Of the court below must be affirmed.

Haynes and Parker, JJ., concur.


source: Caselaw Access Project

author: GIFFEN, J.

license: Public Domain

text:
    CONSTITUTIONAL LAW — COUNTIES—PARTIES.
    [Clermont (1st) Circuit Court,
    February 2, 1907.]
    Jelke, Swing and Giffen, JJ.
    Howard Ferris v. Clermont Co. (Comrs.)
    1. Enjoining Execution op Public Contract — Rights op ' Party in Interest.
    For the reason that one having an interest in a contract is a necessary party to an action to enjoin execution of the contract, a general demurrer will not lie to a petition averring that a contract to which plaintiff is a party has been enjoined in an action to which he was not a party, and praying for a vacation of the decree of injunction and for specific performance. .
    [For other cases in point, see 3 Cyc. Dig., “Counties,” §§ 420-429. — Ed.]
    2. Validity op Act Authorizing Purchase of Toll Roads by Counties.
    The act of April 25, 1904 (97 O. L. 414; Lan. 8321 et seq.; B. 4875-6 et seq.), authorizing county commissioners to purchase toll roads upon and along ’which'suburban and interurban railroads are constructed and to maintain the same as free turnpikes, is not unconstitutional for lack of uniformity of operation.
    [For other cases in point, see 2 Cyc. Dig., “Constitutional Law,” §§ 975-1251. — Ed.]
    3. What Toll Roads ake Included in Above Act.
    The authority granted by this act is not limited to the purchase of toll roads having both termini within the county; it does not, by authorizing the purchase of roads upon which traction companies have secured-rights of way, make possible such a joint ownership as is forbidden- by the constitution; but it does authorize the purchase of appurtenances of the road such as toll houses.
    [Syllabus approved by the court.]
    R. B. Smith, E. G. Kinkead and Frazier & Hicks, for plaintiff.
    Davidson, Hulick & Nichols, for defendant.
   GIFFEN, J.

The plaintiff sets forth in his petition a contract with the commissioners of Clermont county for the sale of that portibn of the Ohio turnpike within Clermont county, pursuant to an act of the legislature passed April 25, 1904 (97 O. L. 414; Lan. 8321 et seq.; B. 4875-6 et seq.), and the approval of a bond securing the payment of 20 per cent of the purchase price of $28,750; that thereafter the court of common pleas, upon application of the prosecuting’ attorney, enjoined the county commissioners from “taking- any further action whatsoever with a view of executing the contract,” upon the ground that the same was in contravention of the laws of Ohio. The prayer of the petition is for a vacation of the decree of injunction and for affirmative relief in the nature of specific performance.

This action is not brought under favor of Rev. Stat. 5354 (Lan. 8880), to vacate a judgment, but is an original action for equitable relief and therefore appealable.

The real controversy arises upon a general demurrer to the petition. The first contention is, that the plaintiff was not a necessary party to the injunction suit, and therefore cannot attack the decree in this action. It must be conceded that he is not concluded or bound by the decree, and yet if it remains in full force- against the commissioners, he is powerless to obtain any relief under the contract which the court has held to be in contravention of the laws of the state. The contract, although executory, was nevertheless complete and- binding upon both parties until rescinded or lawfully set aside. With such -existing mutual rights, it would b.e inequitable to determine the rights of both by an action against one only. It would not only deprive him of his day in court, but would open wide the door to fraud and collusion. ■ We are of the opinion that the present plaintiff was a necessary party to the injunction suit, and not being made such can, in this action, attack the decree so far as it affects his interest in the contract; and besides it is his only remedy, as he could not m'aintain an action for damages for -breach of a contract which the same court has declared illegal. It was unnecessary for the plaintiff to aver that he himself was not a party to the injunction suit. He does aver that the action was commenced by the prosecuting attorney against the board of county commissioners, and that a decree' was entered restraining it from doing the act complained of; whence the presumption that no other person was a party to the suit. The provisions of Rev. Stat. 2834b (Lan. 4286) and Rev. Stat. 851 (Lan. 2110), do not apply to the act under which the contract was made. Cincinnati v. Holmes, 56 Ohio St. 104 [46 N. E. Rep. 514].

The construction of the act which limits any purchase thereunder to such roads only as have both termini within the county is strained and unsound.

The description of the turnpike sold, although not by metes and bounds, is sufficient to identify the property, and will therefore support an action for specific performance.

The objection that the act does not authorize tile purchase of toll ■ houses is not sound, as they are appurtenances of all such roads, and as much a part of the roads as the bridges and other appurtenances.

It is contended that the county commissioners' cannot lawfully purchase a turnpike subject to a right of way theretofore granted to a traction company, and reliance is had upon the case of Alter v. Cincinnati, 56 Ohio St. 47 [46 N. E. Rep. 69; 35 L. R. A. 737], but in that case the act of April 24, 1896 (92 O. L. 606; Lan. 3713 et seq.; B. 1536-547 et seq.), was, except Sec. 8 thereof, held to be a valid statute, and yet under Sec. 6 the commissioners of waterworks were authorized to “appropriate any land, turnpike, highway or franchise of any description, or any easement or interest in any of the same.”

In this ease the county commissioners purchased the entire turnpike, subject to the right of way of the traction company. This is not a part ownership, such as would bring it within the inhibition of Art. 8, Sec. 6 of the constitution.

Nor do we think that the act under consideration contravenes Art. 2, Sec. 26 of the constitution. State v. Turnpike Co. 37 Ohio St. 481; Cincinnati St. Ry. v. Horstman, 72 Ohio St. 93 [73 N. E. Rep. 1075].

We have examined the other objections to the petition, and finding none of sufficient force to warrant us in sustaining a general demurrer, the same will be overruled.

Jelkc and Swing, JJ., concur.


author: PARKER, J.

text:
    ASSESSMENTS — ESTOPPEL.
    [Lucas (6th) Circuit Court,
    June 8, 1907.]
    Haynes, Parker and Wildman, JJ.
    Graff M. Acklin et al. v. Peter Parker, Treas., et al.
    1. Council not Estopped bt Preliminary Assessment Proceedings.
    Council is not estopped from fixing a different proportion in an assessing ordinance, and thus laying a heavier burden on a property owner by reason of the fact that they have declared the proportion they intended to assess upon the abutting property in the original resolution and ordinance declaring the necessity to improve the street, when the property owner has done nothing in reliance upon the declarations in such ordinance and resolution,
    [For other cases in point, see 1 Cyc. Dig., “Assessments,’' §§ 169-195, 300-308; 6 Cyc. Dig., “Municipal Corporations,” §§ 1225-1347. — Ed.]
    2. Requisites oe Estoppel -in Pais.
    To constitute an estoppel in pais the party claiming such estoppel should have proceeded upon the admission, or declaration, or'statement, or whatever it may be to his prejudice.
    [For other cases in point, see 4 Cyc. Dig., “Estoppel,” §§ 264-322-, — Ed.]
    3. Evidence of Mistake must Be Conclusive.
    To establish a mistake in the proceedings of a city council preliminary to the making of an improvement, the proof must be clear and satisfactory.
    [For other cases in point, see 4 Cyc. Dig., “Evidence,” §§ 3740-3764. — Ed.]
    4. Incidental Expense Items Chargeable in Paving Assessments.
    A charge upon an abutting owner in a paving assessment for removing the water boxes on the street, which were put in by the city, and not by a private person or corporation, is a legitimate item of expense.
    [For other cases in point, see 1 Cyc. Dig., “Assessments,” §§ 285-298. — Ed.]
    [Syllabus approved by the court.]
    Appeal from Lucas common pleas court.
    B. A. Hayes, for plaintiff.
    O. W. Nelson, for defendant.
   PARKER, J.

This is a companion case to the case of Lippert v. Toledo, 29 O. C. C. 345, recently decided by this court against the plaintiff, wherein the decision of this court was affirmed by the Supreme Court, without report. For a general statement of the case as well as for the particulars and the views of this court, we refer to that case.

Had the petition of the plaintiff, Acklin, remained unchanged, the cases would be precisely alike; but, after the decision of the Lippert case by this court and its affirmance by the Supreme Court, Mr. Acklin amended his petition by adding three things which he, deems material and as affording him a right of relief notwithstanding the views of the court expressed in the Lippert case.

The amended petition sets forth, in the first place, that the original resolution declaring the necessity to improve the street and the original ordinance determining to proceed with the repaving were duly published and that Mr. Aeldin had notice thereof, and therefore the city is estopped from levying the assessments for the repaving upon any other basis — by any other method — than that described in that preliminary legislation. This amendment seems to have been suggested by a remark of the court in delivering the opinion in Lippert v. Toledo, supra, that there was no element of contract or estoppel in that case; and Mr. Acklin or his counsel, seems to have concluded that they had better have an (dement of estoppel in this case, if it was possible to get it in. Now we do not find in the averments or in the proofs submitted the essential elements of estoppel in pais. It is apparent that what counsel for plaintiff is relying upon is an estoppel in pais or equitable estoppel. That there is no estoppel by the record, is determined by Lippert v. Toledo, supra. A general statement of the doctrine of estoppel in pais is found in 11 Am. & Eng. Enc. Law (2 ed.) 421, as follows:

“The most usual application of the doctrine of estoppel in pais arises from the misrepresentation or concealment of material facts on the part of the person to be estopped. Thus, it is a well-settled rule of equity which has been adopted by the courts of law that where A has, by his acts or representations, or by his silence when he ought' to speak out, intentionally or through culpable negligence induced B to believe certain facts to exist, and B has rightfully acted on this belief, so that he will be prejudiced if A is permitted to deny the existence of such facts, A is conclusively estopped to interpose a denial thereof.”

The theory apparently under which plaintiff seeks to make application of this doctrine is, that the city had decided to proceed in a certain way, and that therefore, he haying been advised of this declared purpose of the city, it could not change the method of proceeding so as to lay a heavier burden on his property. But one very important element of this doctrine — one element which is necessary to give rise to an estoppel is, that the party claiming it should have proceeded upon the admission, or declaration, or statement, or whatever it may be. to his prejudice; that is to say, so that a change upon the part of the person making the declaration or admission would prejudice the party claiming the estoppel. As stated in this same work, at page 436:

“Another essential element of estoppel by misrepresentation o.r concealment is, that one party should have relied upon the conduct of the other and been induced by it to act or to refrain from acting so that he will be substantially injured if the other party should be allowed to repudiate his action. And this rule applies as well where the conduct of the party to be estopped consists of silence as where it consists of positive acts.”

There is no averment and there is no attempt to show that Mr. Ack-lin changed his position or that he could have changed his position to his prejudice in reliance upon the disclosed purpose of the city; it to have omitted anything in reliance upon that ordinance that should is not asserted that it would have been possible for him to have done or have precluded the city from proceeding as it did to correct the blunder that occurred therein. As was said in the Lippert case, the city proceeded upon its own initiative. No petition was required and no petition was submitted to the council, and we hold there — and we were affirmed upon that proposition — that a blunder occurring in the preliminary resolution and ordinance might be corrected in the final assessment. No matter what the council may have said or may have omitted to say, we do not see how the city would have been precluded from correcting that blunder. But here, as I say, it is* not averred and there is no attempt made to show that Mr. Aeklin did anything or omitted to do anything, in reliance upon the declaration in the preliminary resolution and ordinance. So we find no element of estoppel here.

The second thing added by the way of amendment to the petition is the allegation that there was a mistake on the part of the council in assessing upon the property owners $10,521.47 instead of $306.67; and in support of this our attention is called to a report of the engineer in which he sets forth that the amount to be assessed upon the property owners is $10,521.47; but as to that item he quotes the language of the original resolution and ordinance, which as we construe them, and as we construed them in the Lippert case, would not authorize so heavy an assessment upon the property owners.

We do not think, however, that this discrepancy was the result of a mistake upon the part of the engineer, afterwards followed by the council in the making of the computation, or in setting down the real amount that they desired to assess upon the property owner; but we believe that the mistake occurred earlier than that- — it was a mistake in the phraseology of the original 'resolution and ordinance. It was apparent to us that what the authorities had in mind all the time is the assessment of this larger' amount upon the property owners. This mistake in the phraseology of the original resolution and ordinance was afterwards corrected in the final assessing ordinance. That comes very far, we' think, from establishing by evidence clear and satisfactory (such as is required in order that a mistake may be found in the proceedings) that such a mistake was made as he here avers.

Now the third and last thing which was added to the petition byway of amendment whereby it was made to differ from the Lippert case, was the averment that $2,124.91 of the amount assessed was for removing the gas and water boxes upon the street. The paved part of the street was widened — the curb lines were set in nearer to the lots —and that made it necessary to make some changes in the service pipes that conveyed the water to the lots. It turned out that this change for which this charge was made, or this expense was incurred, was in the water boxes only, which are 'put in by the city, and not by a ■ private person or corporation, and we think that this was a legitimate item of expense which might properly be charged as a part of the expense of the improvement.

The finding and judgment will be against the plaintiff. The petition will be dismissed at the cost of the plaintiff.

Haynes and Wildman, JJ., concur.


author: MARVIN, J.

text:
    EVIDENCE — GIFTS.
    [Cuyahoga (8th) Circuit Court,
    February 17, 1906.]
    Marvin, Winch and Henry, JJ.

      John Hicks, Administrator of the Estate of Elizabeth Hicks, v R. H. Hicks
    1. Promissory Note Presumes a Loan.
    Where a son executed a note in favor of his mother and paid interest thereon, there is a presumption raised that the money evidenced by the note was received by him as a loan.
    2. Declarations of Payee of Note Admissible to Establish a Gift.
    But the presumption thus raised may be overcome by evidence as to the intention of the parties at the time of the transaction and thereafter; and in an action by the administrator of the estate of the mother for recovery on such a note, evidence as to declarations made by the mother to third parties, to the effect that she did not intend the money should be treated as a loan, but as an advancement, are admissions against her interest and are admissible; and if the evidence establishes that it was her intention it should be treated as an irrevocable gift, and the son 'accepted it with that understanding, it must be so regarded, notwithstanding the execution of the note and the payment of interest thereon.
    [For other cases in point, see 4 Cyc. Dig., “Evidence,” §§ 2212-2370; “Gifts,” §§ 68-71, 87, 105. — Ed.]
    [Syllabus approved by the court.]
    Error to the court of common pleas.

      T. H. Johnson, for plaintiff in error.
    Brady & Dowling, for defendant in error.

       Affirmed, without report, Hicks v. Hicks. 76 Ohio St. 000: 52 Bull. 132.

   MARVIN, J.

The parties here are as they were in the court below. Elizabeth Hicks was the wife of John Hicks. The defendant is their son.

On September 3, 1901, Elizabeth, then being in full life, furnished to her said son the sum of $1,000 toward the purchase of a farm which he bought about that time. The father, John, at the same time furnished the son $2,000 for the same purpose. The son gave to each of his parents his promissory note, bearing interest, for said several sums.

Elizabeth Hicks died intestate in 1904, and the plaintiff is the duly appointed and qualified administrator of her estate. Except payment of interest from time to time made as it became due to his mother in her lifetime, R. II. Hicks has paid nothing on the note given to his mother. •

Suit was brought by the administrator on this note. The defendant answered, making no defense except that the money furnished him by his mother was not a loan, but was a gift made by way of advancement to apply on what would be coming to him out of the estate of his mother after her death. The only question at issue in the trial was, whether the money furnished was a loan or an advancement.

The jury returned a verdict for the defendant and judgment was entered in accordance with the verdict. All proper steps have been taken to bring the case before this court for review, as well upon the weight of the evidence as upon questions of law raised at the trial.

No exception to the charge of the court was taken by the plaintiff, nor is it even suggested here that the charge was not in all respects what it should have been. Rulings upon the admission of evidence are, however, complained of, and it is further urged that there was error in overruling the motion of the defendant for a new trial, on the ground that the verdict was against the weight of the evidence and not sustained by sufficient evidence.

The defendant, being incompetent under the statute to testify on the subject, evidence was offered in his behalf of conversations had by others with his mother on the subject of her furnishing him this money as a loan or by way of advancement, and her statements made to various parties of what she intended in regard to the matter, and how she came to take the note, were admitted over the objection of the plaintiff.

Various definitions have been given to the term “advancement” as applied to the distribution of estates. See Thornton, Gifts Sec. 525; 2 "Woemer, American Law of Administration Sec. 555.

In Moore v. Freeman, 50 Ohio St. 592, 594 [35 N. E. Rep. 502], Judge Spear defines it in these words:

“An irrevocable gift by a parent to a child, in anticipation of such child’s future share of the parent’s estate.”

Many of the definitions are broader than this, making it include such gifts to others than children, who at the death of the donor, intestate, would be entitled to distribution in the estate, but under any definition given by the text-books or laid down in the cases, if the money furnished by this mother to her son was intended by her and accepted by him as an irrevocable gift, to be treated as a part of the estate of his mother which would come to him on distribution at her death, then it was an advancement.

The fact that the son gave his note for the money furnished, and paid interest thereon, raises a presumption that the money was borrowed by him. This, however, may be overcome by evidence. See Tobias v. Richardson, 26 O. C. C. 81, and other authorities.

The intention of the parties at the time the money was furnished determines its character. That this may be shown by the declaration of the donor, where he states that the money furnished was a gift or advancement, rather than a loan, after it was made is admissible as an admission against interest. Paddock v. Adams, 56 Ohio St. 242 [46 N. E. Rep. 1068], and what is said on page 246 we think shows beyond question that the statements made by the mother after or before or at the time, certainly at the time and after the money was furnished, are admissible as admissions against her interest. It was her interest to have this treated as a loan, and when she, if she did so, stated to others that it was not a loan, that she had simply given it to her son to be treated as an advancement or a gift, her statements in that regard are admissible.

Two witnesses testify that Mrs. Hicks stated in reference to the note which she held agáinst her son, that she took his note because her husband made her do so; that she took the note because father insisted that she have a note. It is urged that this is inadmissible; that it is not admissible to show by the statement of one who has furnished money, or rather one who it is claimed has furnished money, to show by the statements of such person that she did furnish the money. It is admitted in this ease that she furnished the money, indeed, that is the foundation of the plaintiff’s claim and the statements made by her tending to show that she did not take a note for that money with any intention that the note should ever be paid, and that she did not loan the money to her son, but gave it to him, were admitted. There was no error in the admission oí this evidence.

But it is said that the verdict is clearly against the weight of the evidence. The case presents some curious, some sad features. It is a most unhappy thing that this father has thought it best to bring this suit against his son. It is a little difficult to know for what reason he thought it his duty to bring the suit. The evidence of the father himself shows that the estate of the mother is more than enough- — counting this as an advancement and counting a like sum furnished to one of his sisters as an advancement — that there is more than enough of the estate so that this son’s portion would be fully $1,000, except that the father, being entitled to a distributive portion, could reduce the distributive portion of the children, and that would reduce the portion to which the son, R. TL, would be entitled to less than $1,000. The evidence shows —or at least the witnesses testify — that the mother said to her niece— the niece testifies that |he mother said to her that the note she had against R. II. Hicks should be delivered to him; that she did not want to retain the note. One of the daughters testifies that the mother said to her that she only took a note because father insisted upon it. Other witnesses testify in a similar manner, that the mother had stated that this money R. H. Hicks had was to be his, a gift. The evidence is not as strong as it sometimes is, and it is barely possible that if the members of the court had been jurors they might have found that the evidence was not of that clear and satisfactory nature to establish that where a note is given by a son to a parent for money furnished by the parent that it was an advancement. Still, the jury were carefully charged by the court that the evidence must be clear and satisfactory. The jury found for the defendant.' We are not prepared to say that it was manifest error for them so to fip.d. The result is that the judgment is affirmed.

Winch and Henry, JJ., concur.


author: WILSON, J.

text:
    PARDONS AND PAROLES.
    [Franklin (2nd) Circuit Court,
    June, 1906.]
    Wilson, Sullivan and Dustin, JJ.

      In re Application of Ira Bailus.
    1. Meaning oe Term “Period oe Imprisonment.”
    The term "period of imprisonment,” as used in Lan. 11197 (B. 7388-8) means the term of the sentence less the time deducted for good conduct.
    2. Discharge oe Prisoner by Warden.
    The discharge of a prisoner hy the warden of the penitentiary and restoration to citizenship must he in compliance with the statutes governing pardons.
    [For other cases in point, see 6 Cyc. Dig., “Pardons and Paroles,” §§ 4-15— Ed.]
    [Syllabus approved by the court.]
    Ulery, Martín & Webster, for plaintiff.
    W. H. Ellis, attorney general. R. J. Mauck and G. H. Jones, for defendant.

       Affirmed, without report, Bailus, In re, 74 Ohio St. 452.

   WILSON, J.

The term “period of imprisonment” as used in Lan. 11197 (B. 7388-8), means the term of sentence, less the time which, under the rules of the penitentiary, may be deducted for good conduct.

The discharge of a prisoner by the warden of the penitentiary, and the restoration to citizenship by the certificate of the governor, under the provisions of said section, are ministerial acts and, to be effective, must be in compliance with law.

The acts in this case were not in compliance with law and were a nullity. Otherwise these officers could discharge a prisoner at will.-

The original commitment was authority for the retaking of the prisoner.

Judgment affirmed.

Sullivan and Dustin, JJ., concur.


author: HENRY, J.

text:
    ASSESSMENTS — ESTOPPEL—MUNICIPAL CORPORATIONS.
    [Cuyahoga (8th) Circuit Court,
    March 23, 1907.]
    Winch, Henry and Marvin, JJ.
    William H. Monroe v. Cleveland (City).
    1. Estoppel or Waiver to Contest Validitv oe Assessment.
    A property owner is estopped from enjoining the collection of the excess installments of an assessment to pay for a public improvement, which is levied in excess of the amount .authorized by law, where he has voluntarily paid the first installments thereof and watched in silence the letting of the contract and the completion of the improvement, and has accepted all the benefits thereof.
    [For other cases in point, see 1 Cyc. Dig'., “Assessments,” §§ 544-599; 4 Cyc. Dig., “Estoppel,” §§ 405-415, 521-530, 581-583, 600-613. — Ed.]
    2. Statute in Force at Commencement of Proceedings Controls Rate of Assessment.
    The rate of assessment by a municipality for a street improvement, upon abutting lands, is governed by the statute in force at the time the improvement proceedings were begun and cannot lawfully be departed from.
    [For other cases in point, see 1 Cyc. Dig., “Assessments,” §§ 56-68. — Ed.]
    Appeal from Cuyahoga common pleas court.
    William Howell, for plaintiff.
    N. D. Baker, city solicitor, and Harry Payer, assistant city solicitor, for defendant.
   HENRY, J.

This is an appeal from the judgment of the court of common pleas in an action commenced by William TI. Monroe, on behalf of himself and many others, to enjoin the collection of the illegal balance- of street improvement assessments levied by the city of Cleveland upon their property abutting on Woodland Hills avenue. The issue is one of law, to wit, whether a person against whose" property an assessment to pay for a public improvement is levied in excess of the amount authorized by law, can, after voluntarily paying the first installment thereof, watch in silence the letting of the contract and the completion of the improvement, accept all the benefits thereof, and then enjoin the collection of the excess installments.

The city maintains that under these circumstances the plaintiff is estopped to maintain his action.

The controlling facts in the case are substantially as follows: In May, 1903, the council of the city of Cleveland, desiring to pave and improve three several sections of Woodland Hills avenue, passed three declaratory resolutions to that end. In June, 1903, it passed ordinances, providing that the cost of said improvement, less the city’s portion, should be assessed upon the abutting lands according to benefits and in ten annual installments. In July, 1903, a copy thereof was served on each of the abutting owners. In September, 1903, council passed ordinances to proceed with the improvement, to assess the cost thereof in the manner aforesaid at the rate of 33 per cent of the tax value of the land assessed, and to issue bonds in anticipation of the collection of such assessment.

At this point the proceedings were suspended and nothing more was done until after the amendment of Sec. 53 of the municipal code, Lan. 3604 (B. 1536-213), passed April 21, 1904. Before the amendment, such assessments could not be levied in any five years to an amount “exceeding 33 per cent of the tax value” of the property subject thereto. After the amendment, the limit was raised to “33 1-3 per cent of the actual value thereof after improvement is made.”

After the passage of this amendment, the city council, in May, 1904,. passed new ordinances to proceed with said improvement, and thereby repealed the former ordinances and levied the assessments on the new basis. In June, 1904, notice of this assessment was duly published in Cleveland newspapers.

In July, 1904, no objections having been filed, council confirmed the estimated assessments. In August, 1904, council levied the special assessments accordingly. In December, 1904, plaintiff, and the other property owners paid, without protest, the first semiannual installment of said assessments. In -May, 1905, the city awarded the contract for the improvement. In June, 1905, the second semiannual installment of the assessments was paid and work on the improvement was begun. In December, 1905, the third semiannual installment of the assessments was paid and work on the improvement was completed. The total cost of the improvement was $114,388.10, and bonds to the amount of $89,-395 have been issued in anticipation of the collection of the assessments to pay therefor.

In June, 1906, plaintiff- commenced this action upon the theory that the rule of assessment obtaining at the time the improvement proceedings were begun could not lawfully be "departed from, that the amendment of Lan. 3604 (B. 1536-213), could have no application to pending improvement proceedings, and that the installments already paid amounted substantially to 33 per cent of the tax value of their property, whereas the assessments as actually levied under the new rule were many times that amount.

In December, 1906, this theory was apparently approved by the Supreme Court of Ohio, when it affirmed, without report, the- judgment in a Lucas county case involving that precise question. Toledo v. Marlow, 28 O. C. C. 298. It being thus conceded that the assessments are. excessive, the sole remaining question is whether plaintiff and those whom he represents are estopped to complain thereof. It is not denied that the city had power to' make and pay for the improvement, nor that the abutting property is actually benefited thereby.

In support of the estoppel the city relies on Tone v. Columbus, 39 Ohio St. 281 [48 Am. Rep. 438]. Against the alleged estoppel the plaintiff invokes the rule of Wright v. Thomas, 26 Ohio St. 346, and Columbus v. Agler, 44 Ohio St. 485 [8 N. E. Rep. 302], Paragraph 5 of the syllabus of Tone v. Columbus is as follows:

“Active participation in causing the improvement to be made will estop the party engaged therein from denying the validity of the assessment; but to create an estoppel from silence merely, it must be shown that the owner had knowledge: 1. That the improvement was being made; 2. That it was intended to assess the cost thereof, or some.part of it, upon his property; 3. That the infirmity or defect in the proceedings existed which he is to be estopped from asserting; and, 4. It must appear that some special benefit accrued to his property from such improvement which it is inequitable, under the circumstances, he should enjoy without compensation.”

In Wright v. Thomas and Columbus v. Agler, supra, it was held that where a person, against whose property an assessment is unlawfully levied to pay for a public improvement, has not been a promoter of the same, though aware that such improvement, beneficial to said property, was being made, such owner may remain silent, until the improvement is completed, without being estopped to enjoin the collection of said assessment or being called upon to do anything until steps are taken to make the assessment upon said property. Both eases are expressly distinguished from Kellogg v. Ely, 15 Ohio St. 64, where the making of the improvement involved an actual trespass upon the property assessed.

In Lewis v. Symmes, 61 Ohio St. 471 [56 N. E. Rep. 194; 76 Am. St. Rep. 428], paragraph 2 of the syllabus is as follows:

“The owner of lands within an assessment district defined in an unconstitutional act for the improvement of á public highway, not having promoted the making of the improvement, may enjoin the collection of an assessment to pay for such improvement in a suit for that purpose begun when an attempt is made to enfprce the assessment. He is not required to begin such suit at an earlier day, though he may know of the improvement and of the intention to make the assessment. Columbus v. Agler, 44 Ohio St. 485, followed. ’ ’

In the opinion of the court by Shauck, J., at page 488, speaking of Tone v. Columbus, and Columbus v. Agler, supra, it is said:

‘ ‘ The relation of these cases is intimate. The later case arose in the circuit court of Franklin county where that court, as the successor of the district court, was engaged in determining the validity of assessments for the improvement of High street, pursuant to the mandate of this court in the Tone case, and in the later case it was determined that inasmuch as the public, in making the unauthorized improvement, was upon a street which it owned and was not a trespasser, as to Mrs. Agler, ‘she was not required to do anything until steps were taken to make the assessments upon her property.’ The application of this doctrine to the cases before us is obvious. If, therefore, Tone v. Columbus would justify the purpose for which it is cited, it must be regarded as modified by Columbus v. Agler. That it was not intended to give such important effect to a void enactment should be inferred from the fact that the court did not either overrule or modify Wright v. Thomas, 26 Ohio St. 346, which is full authority for the proposition that the doctrine of es-toppel cannot be invoked in a case of this character.”

In Cincinnati v. James, 55 Ohio St. 180 [44 N. E. Rep. 925], the syllabus is as follows:

“1. When an assessment for a street improvement, whether payable in installments or not', is larger than allowed by law, and sufficient has been paid, though voluntarily, to equal or exceed the amount which could be lawfully assessed, the collection of the remainder of such assessment may be enjoined.
“2. In such case the action is not to recover payments already made, but to prevent the collection of unpaid illegal installments.”

In that ease, however, the city, in assessing per foot front certain corner lots of which the one hundred and five-foot side, instead of the thirty-five-foot front, abutted on the improvement, had taken the latter instead of the former as the assessable frontage, thereby making the assessment thrice as large as it could lawfully be under the rule of Haviland v. Columbus, 50 Ohio St. 471 [34 N. E. Rep. 679]. The question of estoppel was not raised-, as shown in the statement of facts at page 181:

“The city claimed that the six payments already made, were voluntary payments, and that the adjustment, under the rule in the Havi-land case, should be only as to the unpaid four installments, and to test that question brought this ease here on error, seeking to reverse the judgment of the general term.”

It is true that this court in Metcalf v. Carter, 10 Circ. Dec. 269 (19 R. 196), held upon the authority of Cincinnati v. James, supra, that:

“(1). A property owner whose property has been assessed for a street improvement, who, without objection, has known that the assessment was made, and has seen the work going on, and paid three installments of the assessment, is not after that estopped from instituting a suit for enjoining the collection of further installments of such assessment. : ’

But in that case, for aught that appears, the installments were paid after, and not, as in the present case, before the improvement was made. Indeed the present case is unique in this, that the first installment was voluntarily paid by plaintiff and all whom he represents, before the contract for the improvement was let. And they all continued to pay without protest, until the improvement was completed. They are thus held to a knowledge at that time of all that they now complain of. And we think this circumstance suffices to distinguish the present case from Wright v. Thomas, Columbus v. Agler, and Lewis v. Symmes, supra, and to bring it within the rule of Kellogg v. Ely and Tone v. Columbus, supra. In going forward with the improvement, the city relied upon the acquiescence of this plaintiff and those whom he represents in the assessment as actually made, as shown by their voluntary payment of the first installment, and their continuance of such payments with knowledge that the work was being done to their benefit and in the expectation that they would pay for it in the manner already determined.

The philosophy of the doctrine of equitable estoppel is eleárly set forth in a manner plainly decisive of this case in Columbus v. Railway, 45 Ohio St. 98, 107 [12 N. E. Rep. 651], where it is said:

“ ‘In equity whenever the rights of other parties have intervened, by reason of a man’s conduct or acquiescence in a state of things, about which he had an election, and his conduct or acquiescence, or even laches, was based on a knowledge of the facts, he will be deemed to have made an effectual election; and he will not be permitted to disturb the state of things, whatever may have been his rights at first.’ ”

The plaintiff’s petition is therefore dismissed.

Winch and Marvin, JJ., concur.


author: SWING, J. GIFFEN, J.,

text:
    LIMITATION OF ACTIONS — SPECIFIC PERFORMANCE.
    [Butler (1st) Circuit Court,
    February 2, 1907.]
    Jelke, Swing and Giften, JJ.
    FRECHTLING V. JACOBS ET Al.
    LIMITATION OF RIGHT TO SPECIFIC PERFORMANCE OF CONTRACT.
    Under the rule that specific performance cannot be granted unless the right thereto rests on clear and certain proof, the privilege of purchase forming the basis of the action in the present case, cannot be enforced after the expiration of the fifteen year period.
    [For other cases in point, see 7 Cyc. Dig., “Specific Performance,” §§ 174-182. — Ed.]
    Beror to Butler common pleas court.
    Alexander Hume and Clarence Murphy, for plaintiff in error.
    W. J. Davidson, for defendants in error.
   SWING, J.

This is an action for specific performance and is in this court on appeal. It was heard on demurrer to the petition, although an answer of the defendant was submitted and contained admitted facts which the court might consider in the event that the demurrer was overruled and leave given the defendant to answer.

Plaintiff’s right to a specific performance rests on the following agreement:

“This agreement entered into this June 5, 1889, between Elizabeth C. Jacobs of the first part and Henry Frechtling and Henry Frecht-ling, Jr., of the second part shows:
“That said Elizabeth C. Jacobs has leased, with the privilege of purchase as hereinafter stated, to said Henry Frechtling and Henry Frechtling, Jr., the following described real estate belonging to her, situate in the third ward of the city of Hamilton, Butler county, Ohio. * * *
“Said real estate is leased to said second parties for the period of fifteen years from and after this date. Said Henry Frechtling and Henry Frechtling, Jr.,, agree to pay in consideration of said rental the taxes on said real estate for the year 1889, and also for each succeeding year during the existence of said lease; they also agree to pay all assessments that may be made for city improvements on the said premises, and if new pavements are required they agree to furnish the material and to make them.
“Said second parties further agree to assume and pay William H. Campbell the principal sum of $3,000 and also interest thereon from this date, same evidenced by note and mortgage held by William H. Campbell on said premises; the interest np to this date to be paid by said first party.
“For the first five years from this date the interest of said $3,000 is to be treated and regarded as part of the rent of said premises, and in addition thereto said second parties agree to pay to said first party as rent $125 per month, and after the expiration of said five years said second parties agree to pay to said Elizabeth C. Jacobs as rent for said premises in addition to the interest of said $3,000, which said second parties agree to release said Elizabeth C. Jacobs from paying or accounting for, the monthly rent of $110 per month during the life of said Elizabeth C. Jacobs unless the property id conveyed by her before that period as hereinafter stipulated. But if after said five years have elapsed said Elizabeth C. Jacobs shall pay to said Henry Frechtling and Henry Frechtling, Jr., said principal sum of $3,000, in that event said second parties agree to pay said first party during her said life an additional sum of $15 per month. Said second parties further agree and bind themselves to erect before the) end of said five years a substantial building of stone or brick as they deem best on said premises. The lease to John N. Hibner on said premises the first party hereby assigns to said second parties and said second parties are to receive all the rents from said Hibner from this date, and said second parties agree to assume and perform all the covenants in said Hibner lease which the first party is bound to perform, and to stand in the place of said first party, as to the stipulation of said lease from this date until the expiration thereof. The second parties agree to assume and perform all the covenants in own use with said llibner’s permission all the buildings and improvements on said premises, but said Jacobs reserves the right to remove the shelving cases and drawers at the end of the Hibner lease. The second parties agree that during the existence of this lease they will not suffer or permit any saloon business to be carried on in any part of the said premises for-the sale of spirituous, malt or vinous liquors.
“It is further agreed that if at any time during her life said Elizabeth C. Jacobs wishes to sell said premises the valuation thereof shall be fixed by an appraisement to be made by two persons of reputable character, who are agreeable to both parties, one to be selected by said first party and the other to be selected by the said second parties and if they two cannot agree they are to select a third party and then all three shall make said valuation of the ground, not including the improvements said second parties may have made thereon, and said second parties agree to purchase the same at said valuation; and if said purchase is so made, and the purchase money paid said first party agrees to execute and deliver a sufficient deed in fee simple with covenants of general warranty for said premises to said second parties and from that period the rent herein stipulated shall cease. If said $3,000 has not been paid back to said second parties the same is to be treated part of said purchase money and this real estate is to remain liable to said second parties as security for the repayment of said $3,000; and it is further stipulated that said first party shall cause to be removed any other mortgages or liens she may have put on the said premises besides said $3,000 mortgage to said William H. Campbell before she makes the deed for the same.
‘‘If said first party shall not sell and convey said premises to said second parties during her life then the first party binds herself, her heirs, executors, administrators and assigns that upon payment of s.’id purchase money, which is to be ascertained by an appraisement mad;1 by two persons, one to be selected by the second party and one to be selected by the legal representatives of the first party, and if they cannot agree then by the addition of a third party to be selected by said two persons, that her said heirs and legal representatives shall execute and deliver to said second parties a good and sufficient deed in fee simple for the said premises with covenants of general warranty, and that out of said purchase money shall be deducted said $3,0Q0. The rent after the death of said Elizabeth C. Jacobs shall continue at the same rate as stipulated above after the expiration of the first five years, but to be paid to her heirs and legal representatives. * * *
“If said Elizabeth C. Jacobs shall die without having conveyed said property before the termination of said fifteen years, then and in that event this lease as a lease is to terminate when her youngest child arrives at full age, but all the other stipulations of this agreement shall remain in force.”

Mrs. Jacobs did not die until more than seventeen months after the expiration of the fifteen years from the date of the execution of the lease. The youngest child of Mrs. Jacobs was thirteen years at the time of the execution of the lease and would therefore become of age within five years from that time, which would have been the time when, said lease would have terminated under certain conditions.

Frechtling went into possession of the premises and complied with the terms of the lease until the fifteen years had expired, at which time Mrs. Jacobs notified Frechtling that the lease had expired and that if he remained in possession the rent would be for a year and at $4,000 per year.

This action was brought after the death of Mrs. Jacobs and is against her heirs asking for specific performance under said agreement. The right to the specific performance must rest on clear and certain proof; if the right is doubtful it cannnot be granted. If the plaintiff is entitled to such a relief in this case the right must clearly be shown in the premises of said written agreement.

If Mrs. Jacobs had died before the expiration of the fifteen years for which the lease was to run at any time after her youngest child had become of age, no doubt Frechtling could have compelled specific performance, but did the right for specific performance continue in either party after the expiration of the lease for fifteen years? After the expiration of the fifteen years, Mrs. Jacobs was entitled to the possession of the premises. She could not compel Frechtling to retain possession and pay the rent, neither could Frechtling prevent her from taking possession. They both definitely fixed the life of the lease at fifteen years from June 5, 1889, but the language used in the lease or agreement in regard to the time when Mrs. Jacobs may compel Frecht-ling to purchase property is “if at any time during her life said Elizabeth C. Jacobs wishes to sell said premises;” this must mean at any time during the life of Mrs. Jacobs during the fifteen years of the life of the lease.

Mrs Jacobs in the course of nature might have lived many years after the expiration of the lease and after she had taken possession of the property, it would be unreasonable to suppose that the party contemplated at any time during her life after the expiration of the lease she might compel’ Frechtling to purchase said premises. As a part of this clause of the lease it is provided as follows: “and from that period the rent herein stipulated shall cease” — the “period” referred to in the payment by Frechtling of the purchase money for said premises. This shows that the purchase by said Frechtling was to be during the lifetime óf thé lease, while rent would be due by Frechtling to Mrs. Jacobs.

The next provision of the agreement, where provision is made for the possession of the premises at the option of Frechtling, contains this statement: “If said party should not sell and convey said premises to said second parties during her life, then the first party binds herself, her heirs. * * * The rent after the death of Elizabeth C. Jacobs shall continue at the same rate as stipulated above after the expiration of the first five years,” showing clearly that the only death contemplated was that of Mrs. Jacobs during the life of the lease. If her death was after the expiration of the lease, the rent could not continue for the lease had terminated. If this right to purchase by Frechtling was to continue indefinitely after the expiration of the lease, and as long as Mrs. Jacobs should live, certainly some statement to this effect would have been inserted in the lease, for the natural presumption would be, that the option to sell and the option to purchase would be co-extensive with the lease, and when provisions are found in each that the rent is to cease in one event and to continue in the other, it is conclusive that they refer to the time limit of fifteen years and not to the indefinite length of her life. That neither party should enter into a contract which was in the nature of an option as to both which was to exist as to' one during her life and as to the other after her death would be unreasonable, and so much so that if such was the real intention of the parties apt words would have been used indicating such intention and it will not be left to be gathered from words which show that the lease was for fifteen years, and which naturally show that the option was to be exercised within that time, or during the lifetime of the lease. No provision is made for the rental after fifteen years, and the lease having terminated Mrs. Jacobs was entitled to the possession of the premises. It is not to be supposed that for years after Frechtling had surrendered possession of the premises he might be compelled to purchase said premises at Mrs Jacobs’ option; neither would they be expected to bind her heirs to sell to Frechtling at this option long after the expiration of the lease and after her death. It is meant that these options were to exist during the existence of the lease and not beyond it.

Although this contract was drawn by a very able member of this bar, it .is not accurately and carefully worded. There is quite a difference in the provisions as to both options where no apparent reason exists for such difference. If Mrs. Jacobs desires to sell said premises during her life, it is provided that the valuation is to be fixed by two persons of reputable character who are agreeable to both parties, and they are to make the valuation of the ground alone and not including improvements placed there by Frechtling; and if Frechtling wishes to purchase the appraisement is to be made by two parties; nothing is 'said about their being reputable or being agreeable to both parties, and no provision is made hs to including the value of the improvements, but simply the heirs are to give a good and sufficient deed in fee simple for “said premises.” These words are used in the provision wherein Mrs. Jacobs may exercise her option to sell, and refer by “said premises” to the description of the premises contained previously in the lease, and it must mean tbe same here. If intended to be definite that word should have been used to indicate such intention. The latter provision being for the conveyance of said premises and there being no provision that the valuation should be made of the ground alone as in the other provision, the whole value of the property should be taken, although I can see no reason why such a difference should have been made. I can see no reason to read into this contract what they have purposely left out, but under my view of the contract this becomes immaterial as Mrs. Jacobs lived beyond the life of the contract which included the life of the option.

The rent chargeable to Henry Frechtling, Jr., since the expiration of the period of fifteen years when the lease terminated until the death, of Elizabeth C. Jacobs and the exercise of the option within a reasonable time thereafter, should be the reasonable rental value of the ground, exclusive of the improvements made by Frechtling.

Judgment affirmed.

Jelke, J., concurs.

GIFFEN, J.,

dissenting.

The lease was for a term of fifteen years but the option of purchase survived until the death of Elizabeth C. Jacobs, when her heirs and legal representatives were, by the terms of the agreement, bound to execute and deliver to the second party a good and sufficient deed upon payment of the purchase money.

The appraisement provided for, in the event Elizabeth C. Jacobs shall not sell and convey during her life, is of the same premises as the appraisement which is provided for in the event she does sell and convey during her life, to wit: the ground not including the improvements the second party may have made thereon.

Demurrer to petition overruled, and decree for specific performance.


author: HULL, J.

text:
    MASTER AND SERVANT — NEGLIGENCE.
    [Lucas (6th) Circuit Court,
    January 30, 1905.]
    Hull, Haynes and Parker, JJ.
    William Zarembski v. Cincinnati, H. & D. Ry.
    1. Cans Boss Serving with Acquiescence of, but not under Authority of Master, who is Paid out of Wages of Gang, a Fellow Servant.
    A gang boss who receives as compensation for his services, a pro rala amount deducted from the wages of the men of his gang' and who acts as a sort of manager for them at their request, and with the acquiescence *>f the employer, hut who is not put in authority by the master, is a fellow servant, and not a superior with power to bind such employer for . his negligence.
    [For other cases in point, see 6 Cyc. Dig., “Master and Servant,’’ §§ 325-361. — Ed.]
    2. Employes Shoveling Ore Assume Risk of Injuries Incident to such Employment.
    In the absence of evidence showing negligence on the part of an employer, in the selection of the place and appliances for the work, employes engaged in shoveling ore into wheelbarrows from a pile under an ore trestle will be held to have assumed the risk of injuries, resulting from the falling of such ore.
    [For other cases in point, see 6 Cyc. Dig., “Master and Servant,” §§ 436-450 — Ed.]
    Error to Lucas common pleas court.
    Harvey Scribner and Cornell Schreiber, lor plaintiff in error.
    Swayne, Hayes & Tyler, for defendant in error.
   HULL, J.

The plaintiff in error, who was the plaintiff below, brought his action against the railroad company to recover damages, which he claims he sustained on account of the negligence of the company. He complains that the company did not furnish him a safe place to work and was negligent in that regard, and that on account of that he was in jured. He was employed upon the docks of the company as a common laborer, at the time of his injury, to shove] iron ore and wheel it to a place on the docks to be loaded into cars. He was injured by a frozen mass of iron ore weighing about eight or nine hundred pounds, some four feet long and about a foot square, which had become fastened in the trestle over his head and lodged there. He was at work immediately under this trestle shoveling iron ore in March, 1903, and while at’ work there in the afternoon, about half past four, this mass of ore fell and broke his leg and otherwise injured him. It is claimed that the railway company was negligent in permitting this piece of ore to be suspended in the way or lodged in this manner, on the trestle, so that it was in danger of falling upon the plaintiff as it finally did fall.

At the close of the plaintiff’s testimony upon motion, a verdict was directed in favor of the defendant and judgment was entered upon the verdict, and it was to reverse this judgment'that a petition in error was filed in this court; the court below held that the testimony did not tend to show any negligence on the part of the railroad eompany.and the question is, substantially, whether the company failed in any respect or was negligent in any respect, in the matter of leaving this iron ore or in the matter of giving plaintiff a safe place to work.

Zarembski had been employed at this work since the December preceding his injury, which was in March, 1903. The ore on the docks had been taken off the vessels the summer and fall before and put onto small ears, dump cars, as they were called, and these were propelled up the. trestles and the coal dumped off so that the ore fell down upon the dock and in that way gradually piled up, until it extended up to the trestle — and did to this particular trestle, which was probably about twenty feet high at this point; and, during the winter, Zarembski and other men had been engaged in moving this ore, which had been so piled up, or stacked up, putting it on wheelbarrows and taking it away, so that it might be put into cars; they began at the bottom edge of the pile and kept moving it away, and the pile was thus gradually lowered. All of the ore had been moved away from under this trestle, except a very small pile, leaving this mass of frozen ore lodged in the trestle above, as I have said. About half past four in the afternoon, Zarembski, with the other men of his particular gang, were directed by the gang boss, as he was called, to move that small pile of iron ore that was under this trestle, to some other part of the dock; and he had been working only a half an hour at this work when this mass of ore fell upon him and injured him.

The men were employed to move this iron ore and were paid for it by the ton; they were not working by the day, but by the ton; .and the gang boss, as he was called, a man by the name of Stump, was employed with the rest of the gang to do this work, and he received the same pay as the rest of the men; but instead of being paid directly for the work he did by the railroad company, when the other men were paid, his pay was taken out of what they were entitled to, — it was retained by the company, and he was paid with that money; it was taken out, so that the money that he received came really from the rest of the gang, pro rata. That is, it was taken out of the compensation for moving this iron ore at so much a ton, his pay being secured in that way; but he was employed simply as one of the gang. He seems to have been kind of a manager.

On the morning of the day that Zarembski was injured, some time during the forenoon, the gang boss had his attention called to this mass of iron ore on the trestle by the men of another gang, (this whole gang was divided into smaller gangs), and the boss went upon the trestle and endeavored to dislodge this piece of ore with a pick or bar of iron; and he testifies that he worked at this work a half an hour and was unable to dislodge it, and he left it and came down, and fbr some reason, about half past four in the afternoon, it fell and injured the plaintiff.

The mass of ore had been left on the trestle by the men who were at work and had been at work upon the,dock, in doing their work of shoveling away this pile of ore under this part of the trestle; this mass of ore being frozen, it was left there, and it had been there some four or five weeks before this injury. The record is very brief; only three witnesses were called, the gang boss, one other man, and the plaintiff himself.

We are of the opinion that the action of the court was correct in directing a verdict. The gang boss, Stump, was employed in the way that I have suggested, and, in our opinion, he was, so far as the plaintiff was concerned, and the other men upon the dock, a fellow servant and not a superior officer with power to bind the company by his negligence, if he was negligent in this instance. He came to the eom-pany with the rest of the gang, according to the testimony; he was simply their boss; he received the same pay as they did, and, it may be said, was there manager; he was not put in authority by the railroad company, except insofar as it acquiesced in his being appointed by the gang themselves as a gang boss, as they called him. They were all working similar to independent contractors; they were doing work by the ton.

The railroad'company was bound, undoubtedly, to furnish to these men a safe place to work, — that rule is well established. It was bound to use ordinary care to see that the docks were safe, that the machinery with which they did the work was safe; they were bound to use ordinary care in all those respects. But the danger here was one that came from -the very nature of the work and grew out of the performance of the • work by the men themselves. Here was a great pile of ore, running from the dock up to this trestle; they were gradually taking it away, shoveling it into wheelbarrows and wheeling it away; as they did tbeir work,-the ore was liable to fall upon them,, if they took-it away leaving a projection or overhanging'mass of ore; and the men themselves left this mass there, one of the gangs, — whether the gang that Zarembski worked with or not. The evidence perhaps discloses that he did not work at this particular pile before the day he was hurt, but the men themselves left this mass of iron ore upon the trestle above them and above the dock. It was incident to, and a result of, the very work which they were doing; and, in our judgment, the railroad company was not legally required to see that the men performing the work that they were hired to do by the ton, left no mass of iron ore or piece of iron ore in a way that it might fall down upon some of them when they were at work. It is held by the authorities that, where a danger arises from the work itself that men are doing, such as this was, the inaster is not liable. Upon this question we cite the case of Durst v. Steel Co. 33 Atl. Rep. 1102 [173 Pa. St. 162], The second and third paragraphs of the syllabus are as follows:

“2. When the only possible danger to an employe engaged in making an excavation is such as may arise during the progress of the work, the employer is not bound to stand by during the work to see if a danger arises, it being sufficient if he provides against such dangers as may possibly arise, and gives the workman the means of protecting themselves.
“3.’ Injuries to a workman engaged in making an excavation through the falling of earth upon him are not shown to have resulted from the negligence of the employer, by the fact that he knew that a sewer ran through the place where the excavation was to be made, and failed to warn the employe.”

This case was affirmed upon the opinion of the trial judge; in.the opinion published on page 1103, this is said:

“It will be observed that the place as it stood when the work commenced was perfectly safe. The danger could only arise as the work progressed, and be caused by the work done. In such a case we do not think it is the duty of the employer to stand by during the progress of the work to see when a danger arises. It is sufficient if he provide against such dangers as may possibly or probably arise, and gives the- workmen the means 'of protecting themselves. They should look out for such dangers, and use the means provided.”

Now, in the ease at bar, dynamite was furnished by the company and men provided to explode it and break up pieces of ore like this, if necessary, if called upon to do it by the men at work. If this gang boss, Stump, should be regarded as a foreman in the employ of the company, as such, it would be difficult to say that he was guilty of negligence in any event, for the testimony shows, as I have said, that on the forenoon of that day he had endeavored to dislodge this piece of iron and worked for a half an hour with tools, but was unable to do so. It would seem that a man of ordinary care would hardly anticipate under the circumstances that the piece of ore would fall during the day, and no explanation is given showing why it did fall; it was a fairly warm day -in March, it may have been melted or thawed and have fallen on that account; but there is no testimony to show that that caused it to fall.

There is no evidence that can be relied on, that any cars were run upon this trestle during the day. Stump thought at first that there were, but afterwards he said he did not know anything about it,— he did not see any go up there, and could not tell therefore what it was that caused this mass of iron ore to fall on that afternoon. It is entirely unexplained in the record'. For some reason it became dislodged about the middle of the afternoon and fell, and plaintiff was injured. But we are of the opinion that the gang boss is not to be regarded as a foreman of the railroad company, so as to bind the company by his negligence, if he was guilty of any negligence. It is well settled, of course, that an employer does not insure his men against all possible injury, and whatever dangers are naturally incident to the employment. The employe ordinarily assumes them; and that there ivas some danger in doing work of this kind is clear. Zarembski testified that he did not know that this mass of iron ore was lodged on the trestle; that he did not see it. But we do not think it is necessary to go into the doctrine of assumed risk to decide this case. For the reasons given, the judgment of the court of -common pleas will be affirmed.

Parker and Haynes, JJ., concur.


author: SMITH, J.

text:
    TRUSTS AND TRUSTEES — WILLS.
    [Hamilton (1st) Circuit Court,
    May 18, 1907.]
    Swing, Giffen and Smithy JJ.

      Lawrence Poland et al. v. St. Joseph’s Orphan Asylum Assn.
    1. Right op Beneficiary and Legatee to Agree on Construction op a Will.
    An-archbishop who is named as trustee of a devise has power to enter into an agreement with the other beneficiaries under the will with respect to the construction to be placed upon its provisions, and he exercises no more than a reasonable discretion in so doing, when confronted by the emergency of an impending contest of the will, and delay on his part in acting or a refusal to act might result in irreparable loss, to the cestui que trustcnt.

    [For otter cases in point, see 7 Cyc. Dig., “Wills,” §§ 436-587. — Ed.]
    2. Validity op Agreement by Parties Interested Disposing op an Estate.
    Such an agreement when entered into in good faith by all the parties interested in the disposition of the estate will be upheld by the court, notwithstanding the construction which was adopted was not the construction which the court would have placed on the will.
    [Syllabus by the court.]
    Appeal from Hamilton common pleas court.
    O. J. Cosgrave, for plaintiff.
    J. L. Lincoln and D. F. Cash, for defendant.

       Affirming Poland v. St. Joseph’s Orphan Asylum, 17 Dec. 234.

   SMITH, J.

Upon consideration of this ease to ascertain the construction of the will of Gregory Rossiter, and particularly the two clauses 5 and 6 of said will, the court is of the opinion that the intention of the testator was to give:

‘ 1. To Mary L. Rossiter a life estate in his real estate, and also his personal estate for life; and

2. The remainder in all of his estate, including the fee in the real estate, and all of his personal property, after paying certain specific bequests therein set forth, to Archbishop Elder and his successors in trust for St. Joseph’s Orphan Asylum- of this city.

We reach this conclusion by reason of the fact that all the items in a will must be construed together, if possible, so as to have each take effect, and in placing this construction upon the clauses full force and effect is given to each clause in the will under consideration. Smith v. Bell, 31 U. S. (6 Pet.) 68 [8 L. Ed. 322] ; Robbins v. Smith, 72 Ohio St. 1 [73 N. E. Rep. 1051], and cases cited.

It appears, however, that s.oon after the death of Gregory Rossiter, Mary L. Rossiter, his sister and legatee under the will, and Archbishop Elder, as trustee for St. Joseph’s Orphan Asylum, made an agreement with regard to their construction of the will, as follows:

“Whereas, the last will and testament of Gregory Rossiter, deceased, was duly probated on June 26, 1899, Case No. 48064, Hamilton county, Ohio, probate court; and,
“Whereas, some doubt or question may exist or hereafter arise as to the true meaning or construction to be given to- items 5 and 6 of said will as to the legal disposition of the personal property of said decedent; and,
“Whereas, it is manifest to our minds that the decedent in referring to personal property in said item 6 intended thereby to mean and refer to personal property growing out of the' investment of the proceeds arising from the sale of real estate, if any should be sold by Mary L. Rossiter, and to no other personal property or intended to refer to leasehold property as personal property.
“Now, therefore, know all men that we, the undersigned, Mary L. Rossiter, sister of said decedent, and Most Rev. William Henry Elder, Catholic Archbishop of Cincinnati, Ohio, a beneficiary trustee under said will-, for and in consideration of the avoidance of litigation, and in consideration of mutual concessions tending thereto, hereby agree for ourselves and those who may come after us, that the real and true construction and meaning to be given to .said items 5 and 6, and to all of said will shall be given as follows:
“First. Mary L. Rossiter shall have the use of, and the income of all the real estate of the decedent during her lifetime, and such other power over thevsame as the will provides.
“Second. That said'Mary L. Rossiter shall have all the personal property of the decedent, including cash in • hand, stocks, bonds and credits, and other personal property absolutely as her own.
“Third. That at'the death of said Mary L. Rossiter the real estate of the decedent shall pass to, and vest absolutely in, the Most Rev. William Henry Elder, archbishop, as aforesaid,- or his successor in ornee, in trust, nevertheless, for the uses and purposes set forth in said will.
“Fourth. That after the death of said Mary L. Rossiter any personal property, the proceeds from the sale of real estate of the decedent, made by said Mary L. Rossiter under authority of the will, or any real estate or securities in which such proceeds shall be invested, shall pass to and vest absolutely in said Most Rev. William Henry Elder, archbishop, as aforesaid, or his successor in office, in trust, nevertheless, for the uses and purposes set forth in said will.
“In witness whereof, we have hereunto set our hands in duplicate, this thirtieth day of June, 1899.
“Mary L. Rossiter,
“William HeNry Elder,
‘ ‘ Catholic Archbishop of Cincinnati. ’ ’

By this paper the two parties mentioned agreed that the true construction of items 5 and 6 gave Mary L. Rossiter the personal estate absolutely, and a life estate in the real estate, with remainder to the archbishop in trust. While this construction is opposed to what we think is the true construction of the will, yet, if the archbishop had power to enter into such an agreement, the court will enforce, the writing as construed by the parties interested and affected thereby. Where parties meet together to make a settlement and place a construction upon the language used in.a will, and agree as to the intention of the testator, and the meaning of the language, such construction will be upheld. Pate v. French, 122 Ind. 10 [23 N. E. Rep. 673] ; Follmer’s Appeal, 37 Pa. St. 121; 30 Am. & Eng. Enc. (2 ed.) 673, and cases cited.

But it is claimed by the defendant that Archbishop Elder, as trustee for St. Joseph’s Orphan Asylum, was without power to enter into such a settlement and agreement of construction of the will in question. The will itself does not give the trustee the discretion under which he acted, but under the evidence in this case, the court is of the opinion that the rule of law allowing trustees under certain circumstances to exercise the discretionary powers of an absolute owner is applicable to this case, and that the trustee had such power. Exigencies arose which demanded his immediate action, and it is evident that it was for the interest of the beneficiary that he should have exercised the reasonable discretionary power he had in the emergencies existing at the time the agreement was made. When the circumstances are such as to require immediate or prompt action on the part of the trustee, and it appears that he acts in good faith, and to the best of his judgment, he will be sustained by the court; and in an emergency which involves a delay that might be attended Avith injury or loss to the estate, the trustee will be upheld in the timely and Avise exercise of discretionary power. 2 Perry, Trusts Sec. 476; 2 Beech, Trusts & Trustees 992, and cases cited.

The archbishop had full poiver as the sole trustee under the laAV to enter into such an agreement. He Avas not alienating church property. He acted in good faith. The agreement whs entered into at a time when he had Mrs. Kossiter believed that an attempt might be made to break the will, and thereby in case the will was set aside, lie would lose all his interest in the estate. At least he believed that ■ such a suit, if brought, might materially lessen the interests of his beneficiary.

In making this agreement, the court feels that he acted in the greatest good faith and exercised that careful and wise judgment which is upheld by the law in such cases, and although the construction placed upon the will by the parties to the agreement- is not, in the opinion of the court, the true construction, yet, the archbishop having power to enter into said agreement, and benefits having accrued to his beneficiary, where perhaps otherwise great loss would have accrued, the court will enforce the construction placed upon the will by the parties, and a decree may-be taken in accordance herewith.

Giffen and Swing, JJL, concur.