author: Makvin, J.

text:
    (Eighth Circuit—Cuyahoga Co., O., Circuit Court
    Nov.Term, 1898.)
    Before Hale, Marvin and Caldwell, JJ.
    JENNIE C. MOORE v. SEBASTIAN FEIG et al. JENNIE C. MOORE v. FREDERICKA MUELLER et al. JENNIE C. MOORE v. CHRISTIAN SCHULTZ et al.

      Construction of will — “Heir” used for “issue” — Vesting of fee .simple estate depending on ’birth of issue—
    Error to the Court of Common Pleas of Cuyahoga county.
   Makvin, J.

There are three cases brought here by Jennie 0. Moore, each upon a petition in error to the court of common pleas. There are different defendants in each case, but each rests upon the same facts and propositions of law. In each case the petition is an ordinary petition in ejectment. The defendants in each are in possession of and claim to own certain lands. The plaintiff claims ownership of the same lands.

The plaintiff is the only child ever born to John Kneale, Junior. John Kneale, Jr., is now dead. He was the son of John Kneale, Sr., who died in December, 1860, leaving a last will and testament which was duly admitted to probate. At the’ time of the execution of his will John Kneale, Jr., was unmarried. The will is in the following •words:

“In the name of God, amen. I, John Kneale, being weak in body but strong in mind and memory, do make and declare this my last will and testament.
“I. I will my body to dust and my soul to God.
“II. I give and bequeath to my son John Kneale all my personal property, and also all my real estate, or the use thereof as hereinafter pointed out, subject however to the life interest of my wife Eleanor, and the payment of all my just debts.
“As a condition of the above bequest, my son John is hereby required to pay to my other sous Thomas and James, within one year from my decease, each the sum of one thousand dollars. A further condition is that said John shall pay to the children of my two deceased daughters Ann and Betsy each the sum of fifty dollars, to be paid to them as they severally arrive at majority.
“Said John is further required to pay to Jane,daughter of my brother Daniel Kneale, of the Isle of Man, the sum of fifty dollars on demand, in case she, the said Jane, should be living.
“Said John is further required to pay within four years from my decease the sum of twenty dollars for the support of foreign missions, to be paid to the preacher in charge on the Newburgh Circuit.
“Now,if.my said son John shall have an heir of his own body, then all title and interest in and to m'y real estate with power to convey/ and sell shall vest in him, But if said John should die leaving no heir of his own body, then said estate shall pass to my son Thomas,subject to the same requirements, restrictions and limitations pertaining to John. And in case Thomas should die and leave no heir of his own body, then it Is my will that my said ieal estate pass absolutely to my son James and his heirs forever, with power to sell and convey. But in no case shall John or Thomas sell or dispose of said estate, unless they shall have an heir of their own bodies.
“Lastly I give and bequeath to my wife Eleanor Kneale in addition to her life interest in my estate the exclusive use of the two North rooms in my dwelliing house, one bed-room in the chamber, and a proportionate use of the cellar and well.
“In witness whereof I hereunto set my band at Warrens-ville,in the county of Cuyahoga and state of Ohio,this 10th day of September, A. D. 1855.
“Signed and declared by the above named John Kneale to be his last will and testament in presence of us, who at his request have signed as witnesses to the same.
John Kneale.
“Truman G. Kent.
“Luther R, Prentiss.

The result of the trials of these several cases in the court of common pleas was a judgment in each case for the defendants. To determine whether or not these several judgments are right, necessitates a construction of this will, because the plaintiff, having outlived her father and being the only child ever born to him as already stated, if the construction claimed by the plaintiff is correct, the judgment is each case should have been in her favor; while if the construction be given to the will which is insisted upon by the defendants, the judgments are right,

The defendants'in each case are in possession of certain real estate which was owned by John Kneale, Sr., at the time of his death, and they claim ownership by conveyance made to them directly or through intermediate conveyances from John Kneale, Jr. Each conveyance under which the defendants claim, was made after the birth of the plaintiff.

It is said on the part of the plaintiff, that John Kneale, Jr., took only a life estate in the real estate left by his father; and this is claimed, first,because of the language of the second item of the will, the first clause of which reads:

“I give and bequeath to my son John Kneale all my personal property, and also all my real estate or the use thereof as hereinafter pointed out, subject, however, to the life interest of my wife Eleanor and the payment of all my just debts. ’’

On behalf of the plaintiff it is urged that the words “or the use thereof as hereinafter pointed out,” are equivalent to the words ‘‘or rather the use thereof as hereinafter pointed out.”

We think, taking into consideration the entire will, that it is a no more unwarranted construction of these words than that claimed by the plaintiff, to say they are equivalent to “or else the use thereof as hereinafter pointed out.”

A further claim in this Item (Item 2) reads: “Now if my said son John shall have an heir of his own body, then all title and interest in and to my real estate with power to sell and convey shall vest in him.”

On the part of the plaintiff it is urged that these words are equivalent to: “Now if my said son John shall have an heir of his own body, then all title and interest in and to my real estate with power to sell and convey shall vest in such heir; while on the part of the defendants it is said that the words are equivalent to: “Now if my said son John shall have an heir of his own body, then all title and interest in and to my real estate with power to sell and convey shall vest in said John.” If the word “heir”, as used in this •clause, is used in its technical sense of “one who inherits from another,” the plaintiff’s construction would seem reasonable; but we all know that this word “heir” is often used in common parlance as meaning “child”. It is very •common to say that one has an “heir” born to him, meaning only that a child has been born to him.

The language of this will, as a whole, evidences that the draftsman was not an educated man likely to discriminate carefully as to the meaning of words, and may, if such becomes necessary for a true construction of this will, be fairly presumed to have used this word “heir” in its more common signification,and to have meant by the words “heir of his own body”,“issue of his own body”. If this be the true construction, then, upon the birth of issue of his body, ■John became the owner in fee of this property, or else he ceased to have any estate in it whatever, because, upon the birth of the heir, “all title and interest in and to my real estate with power to sell and convey shall vest in him,” and if “him” means “issue of his own body”, then the child at birth became the owner of this property absolutely, and might, upon arriving at full age, convey the same without any interference on the part of the father, and, indeed, it might be sold, under proper proceedings, by the guardian of such child, during the child’s infancy, and John would have had no right to interfere.

If, however, the antecedent of the word “him” be John, then upon the birth of the child, John might convey, as he did, and the title made by him would be perfect.

This latter construction is, as we think, strengthened by other parts of the will. John is required to pay, as will be seen by the reading of the will, a considerable sum of money to other persons as a condition upon which he shall hold whatever estate is granted to him in the will. One of the provisions of the will is in these words: “But if said John should die leaving no heir of his own body, then said estate shall pass to my son Thomas subject to the same requirements, restrictions and limitations, pertaining to John.” Here it will be observed that the words “leaving no heir of his own body” are used, while in the clause before quoted the words are “ Have an heir of his own body, ” and it is urged on the part of the plaintiff, that if the construction claimed by the defendants be given to the will, a state of facts might have arisen which would make this last-quoted clause entirely nugatory, because John might have issue of his own body born, and still die leaving no issue. And it is said if this state of facts had existed at the time of John’s death, and John had before that time, after the birth of his child, conveyed the property away, Thomas. would have been left without any interest in the estate, whereas the testator has expressly given to him this property in the event that John should die leaving no “heir of his body.” It is manifest that this difficulty exists,if the construction claimed by the defendant be given to this will. But we are inclined to the opinion that less difficulty results from giving the construction to the will, claimed by the defendants, than in giving it the construction claimed by the plaintiff.

We are strengthened in this view, by the following clause in the will: “But in no case shall John or Thomas sell or dispose of said estate unless they shall have an heir of their own bodies.” Clearly the words “heir of their own bodies”, are used in the sense of “issue of their own bodies,” because if the word “heir” is used in its technical sense, neither John nor Thomas could have sold at all, for neither could leave an heir of his own body until after his death.

On behalf of the plaintiff it is urged that the word “estate” is used in its technical sense of “interest”, but, even if that be true, the difficulty just suggested, would still exist. Such interest could not be sold until the oarent had died leaving an “heir”, as he could have no “heir” in the technical sense, until death. But the word “estate” in common parlance is used to mean “property”, and we think was so used in this clause of the will. So that the provision is that neither John nor Thomas should sell this property unless the one, so undertaking to sell, should have issue of his body, and, in the event of his having issue of his body, we think the implication is plain and should be considered in determining the true construction to be given to this will.

It is manifest that the testator supposed that but for this provision, some disposition of the property might be made by John or Thomas, and he undertook to say that such disposition should not be made except upon tbe happening of a certain contingency, and it seems fair to say that upon the happening of such contingency he intended that the property might be sold.

Wm. Howell, and George L. Phillips, for Plaintiff in Error.

Hessenmueller & Bemis, for Defendants in Error.

It is not without some misgivings that we come to the conclusions to which we do in these cases, because whatever construction be given to the will, as already pointed out, might result in difficulties which we think were not foreseen by the testator. But, on the whole, we are of the opinion and hold that the construction to be given to the will is that contended for by the defendants, that the judgment of the court of common pleas in each case was right, and such judgments are affirmed.


source: Caselaw Access Project

author: King, J.

license: Public Domain

text:
    (Sixth Circuit—Lucas Co., O., Circuit Court
    Oct. Term, 1898.)
    Before King, Haynes and Parker, JJ.

    THOMAS H. DEVEAUX v. WILLIAM E. CLEMENS.

      Evidence — Testimony at former trial — Witness not accessible stenographer’s notes competent.

    (1). Sec. 5242a, as amended, providing that whenever a witness, after testifying orally,die or is beyond the jurisdiction of the court and his testimony can not be obtained in any manner, the stenographer’s minutes of the testimony taken at a preceding trial shall be admissible in evidence is not in violation of the constitutional provision that one charged with crime should meet the witnesses face to face.

      Refusing colored person accommodation — Action for penalty.

    (2). In a suit by a colored person for the penalty for a violation of sec. 4426-2, É. S., providing that all persons shall be entitled to the full and equal enjoyment of the accommodations of inns, restaurants, etc., a preponderance of the evidence is sufficient to authorize the plaintiff to recover. Such a suit is a civil action.

      Leading questions — Discretion of court.

    (3). The permission to ask leading questions is to some extent within the discretion of the court, and a judgment will not be reversed unless an abuse of such discretion is shown.
    Error to the Court of Common Pleas of Lucas county.
   King, J.

Clemens brought suit against DeVeaux before a justice of the peace to recover a penalty provided for by section 4426-2, Revised Statutes. The preceding section provides in substance that all persons in this state “shall be entitled to the full and equal enjoyment of the accommodations, advantages, facilities and privileges of inns, restaurants, eating-houses, “etc,” subject only to the conditions and limitations established by law applicable alike to all citizens.” And this section 2 provides' that any person who violates the first section “by denying to any citizen, except for reasons applicable alike to all citizens of every race and color * * the full enjoyment of any of these accommodations and privileges * * or by aiding or inciting such dpnial, shall for every such offense, forfeit and pay a sum not less than $50 nor more than $500 to the person aggrieved thereby, to be recovered in any court of competent jurisdiction in the county where said offense was committed.” It further provides that he may be prosecuted and convicted of a misdemeanor, and fined these sums or imprisoned a period of time; and provided further that a prosecution and judgment in either form of action will be a bar to the other. This suit was brought to recover the penalty provided in that respect. It resulted on appeal to the court of common pleas in a verdict for the plaintiff below for the sum of $50. It is claimed that error intervened in that case in two or three particulars.

On the trial,the testimony of a witness who had appeared and testified at the former trial, but who, on this trial, was not present, was taken and used through the notes of the stenographer. It is urged as objection to this, first, that there was no proper or sufficient showing that authorized, under the statute, the admission of this testimony; and second, that the nature and form of this action was criminal, and. that the defendant was entitled to meet the witnesses against him face to face, under the provision of the bill of rights of the Ohio state constitution. The statute is sec. 5242a, as recently amended, and provides that whenever a witness after testifying orally, die, or is beyond the jurisdiction of the court, and that the testimony so used cannot be obtained in any manner, that the stenographer’s minutes of the testimony taken at the preceding trial are admissible in evidence. There was appended to the minutes or the notes of the stenographer an affidavit which recited that this witness was beyond the jurisdiction of the court. As the affidavit was filed under the statute, it must be held to have been sufficient to authorize the court of common pleas to admit the testimony, and to hold that the testimony under those oircumstances would be competent. This section, except for the innovation it contains as regards stenographers’ notes and minutes of the testimony of witnesses taken on a former trial, is nothing new in the practice of the law. It is an old and well settled principle of law that the testimony of a witness given at a former trial between the parties, and upon the same subject matter, in the absence of that witness beyond the jurisdiction of the court, or his death, may be offered in evidence. Under the laws of Ohio he could have his deposition taken, of course. A deposition is one form of introducing that testimony in evidence. But it is claimed to the court here that the defendant was entitled to meet his witnesses face to face, even if he were present. That would, I think, be answered by the reasoning of the court in the case of Summons v. State, 5 Ohio St., 325 and 340. That was a criminal case, where the defendant was prosecuted by an indictment for the crime of murder, and there the testimony of a witness was offered that had been used in the same case at a former trial. Of course, in those days they had to prove it largely by the testimony of witnesses who heard the witness testify. The court say that does not violate the provision of the constitution that one who is charged with crime should meet his witnesses face to face. It is admittedly one of the exceptions to the principle as to the admissibility of evidence, and arises from the necessities of the case: the inability to procure the evidence of the witness by any other means. That case would answer the charge that the defendant here wa3 entitled to meet the witness face to face, and I need not say anything more about it.

It is contended further that the court charged the jury that a preponderance of evidence was sufficient to authorize the plaintiff to recover. It is strenuously urged that this is a charge of a crime, or that which might constitute a crime; for the statute creating the offense provides that it may be prosecuted either in the criminal or civil courts; and that the charge would be the same in one event as in the other. It has been held in many cases by the supreme court of Ohio that in actions to re'cover damages based on offenses that otherwise would be criminal, a preponderance of evidence is sufficient to authorize the plaintiff to recover. A number of those cases can be found: 26 Ohio St., 2; 34 Ohio St., 157; 84 Ohio St., 151; 40 Ohio St., 204. It has been held among these that prosecutions to recover damages for the illegal sale of intoxicating liquors, prosecutions to recover damages for the unlawful and malicious destruction of property, are alike governed by the same rules of evidence that apply in other civil cases. It is also well settled that in prosecutions in bastardy and in cases of a like nature, a preponderance is sufficient, although in those cases the form of the verdict is simply “guilty”, and the amount of the penalty is fixed by the court, and not by the jury. In this ease the amount of the penalty is fixed by the jury within the limits of the statute, and not by the court. We are unable to find any authority which would sustain us in holding that the plaintiff should be required to prove his case beyond a reasonable doubt, in a case like this, to authorize a verdict in his favor.

Southard & Southard, for Plaintiff in Error.

E. 0. King, for Defendant in Error.

In the course of the trial there were some questions asked which it is claimed were leading. To some extent the permission to ask leading questions is within the discretion of the court. A case will not be reversed on that ground unless an abuse of that discretion is shown, and especially where the record shows that the questions and answers were not in anywise prejudicial to the defendant. We do not think these were prejudicial in this case, and an examination of the record does not disclose any error for which the judgment should be reversed. It will therefore be affirmed.


author: Swing, J.

text:
    (First Circuit—Hamilton Co., O., Circuit Court
    July Term, 1898.)
    Before Cox, Smith and Swing, JJ.
    PERCY D. IRELAND v. H. T. LOOMIS, Administrator of Alice S. Ireland.

      An equitable action will not lie in Ohio for the recovery of personal property—
    Error to the Court of Common Pleas of Hamilton county.
   Swing, J.

We think the judgment of the court of common pleas should be reversed, for the reason that the petition of the plaintiff in that court does not state facts sufficient to constitute a cause of action, and plaintiff’s petition should have been dismissed. The action of the plaintiff was a suit in equity to recover the possession of certain personal property other than-heirlooms or written evidences upon which a suit at law might have been brought! We have no such action in Ohio, although it is alleged that the defendant conceals the property, and is insolvent. The authority cited from Massachusetts is not in point, as in that case the court holds in favor of the action by reason of the terms of their statute. We have no such statute in Ohio.

Hagans & Hagans, for the Plaintiff in Error.

Cleveland & Bowler, for the Administrator.

Plaintiff’s action should have been under section 6053 et seq., and under the provisions of the statute in aid of execution. There is no statute in our state which authorizes an equitable action for the recovery of personal property, and without which there is no such right except as above referred to. ' -

The judgment should be reversed and the cause remanded to the court of common pleas with instructions to dismiss plaintiff’s petition,


author: Bentley, J.

text:
    (Sixth Circuit—Lucas Co., O., Circuit Court
    Oct. Term, 1894.)
    Before Bentley, Haynes and Scribner, JJ
    MELCHIOR J. SCHAAL v. EDWARD W. HECK.

      Examination of witnesses — Interruption with questions by adverse party — Discretion of court.

    (1). Counsel has no right to interfere by questions, etc., with the examination of witnesses by adverse counsel, but should wait until his turn comes to examine the witness; yet this is a matter in the discretion of the court, and where it does not appear to have been prejudicial to the party, it will not be sufficient ground for a reversal of the judgment.

      Res Gesta — Expressions of party after occurrence — Admission for erroneous reason, when not ground for reversal of judgment.

    (2). An expression by one of the parties after the occurrence, being one of surprise, is not admissible as part of the res gesta. If however the expression was otherwise admissiole under the state of the pleadings in the case, the fact that it was admitted for an erroneous reason would not warrant a reversal of the judgment.

      Expert testimony — When not proper.

    (3). Where the danger was so plain and obvious that any ordinary workman could notice it, expert testimony should not be admitted.

      Employer and Employe — Liability for defects in appliances.

    (4). The employer is not a guarantor of the sufficiency of all the appliances furnished the workman for use, but he must use ordinary and reasonable care in providing safe appliances.

      Same.

      (5), A workman takes his chances in working in a dangerous place or situation regarding which he knows the facts,yet he is not chargeable with the risk to the same extent as is the master. He is not under the same obligation to search for hidden defects or possible dangers as is the master.

      Injury to apprentice. — Contributory negligence.

    (6). Where the workman injured was an apprentice, yet if he had ordinary intelligence, he was bound to apply it, and if by the exercise of ordinary care he could have known the conditions he was working under, he is presumed to know them, and the law charges him with such knowledge.
   Bentley, J.

I shall not attempt to go over in detail and consider all of the many exceptions that were taken during the trial of this case. The record is quite long, and the exceptions aro various. I will dispose of all the objections and exceptions in groups, without specially turning to each particular one.

In order to do this with, any fair degree of brevity, it will be necessary to have before us the main outlines of the matters involved in the case, and I will state them from memory, as they were presented by the pleadings and the record, but perhaps not with entire accuracy,

Nearly four years prior to February 15, 1893, the plaintiff below, Edward W. Heck, a young man, was apprenticed to the defendant below, the plaintiff in error here, Melchoir J. Schaal, to learn the trade of a brick mason. It seems that the terms of apprenticeship were fixed in some way by some labor union, and the precise terms of the contract do not appear anywhere in the record; but Mr. Schaal accepted Mr. Heck as his apprentice in the business, and Mr. Heck entered the employment. Mr, Schaal was a building contractor, and had built quite a large number of important buildings in the city of Toledo, and, I believe, was'himself a practical brick mason, with some years of experience. A few weeks or so prior to February 15, 1898, Mr. Schaal took the contract of the Toledo Electric Company to build for them a large brick structure as a power house on Water street, in this city, a couple of blocks north of Cherry street. During all of the time intervening between the beginning of this apprenticeship of Mr. Heck and the building of this structure in question, Mr. Heck had worked with the other workmen of Mr. Schaal about brick laying, and laid up or assisted in laying up walls such as are ordinarily used in buildings around the city. This building had progressed to some extent by February 15, 1893, and there was then to do about it the finishing of a wall — perhaps it might be termed the end wall — fronting on Water street. It was to be a solid brick wall, twelve inches in thickness, from the ground up to a certain cornice which I will mention hereafter, At this time this wall had been started, and had been worked upon the day before February 15, and brought up to a certain height, and, as was usual, and customary, and proper in the building of a twelve inch wall,at about every seventh course of brick, the three courses constituting the wall were tied together by a tying course, or “headers” as some of the witnesses call them. No complaint is made but that the wall was properly made, so far as it stood on February 15, the day in question. At that time it had been brought up above the second story. In laying the wall it was customary, and, it seems by the evi-deuce, entirely proper, to lay the outside course the width of a brick, viz.: four inches, up a certain distance first, then the middle course also of four inches, next to that, and the tie put in at each seventh course; and when the outside and middle wall were thus put seven courses high, the inside four inch wall was also brought up and tried to the middle wall. So that when these ties were in, it constituted a wall twelve inches in thickness, consisting of three separate layers of brick, but tied together firmly in the manner that I have stated, being laid up with ordinary mortar.

On the day in question the plaintiff below, Mr. Heck, and four others, bricklayers, were at work upon this .wall to carry it up further. It was to be built in all upwards of forty feet, perhaps forty.-five. ' They proceeded, to lay the wall, using a scaffold which had been prepared, resting upon boards laid across the floor joists, until they had raised the entire wall some two and a half or three feet above the top of this scaffold. Then, without making any other scaffold, or raising this one, they proceded to lay the wall up some farther. They laid the outside wall up to a certain distance, perhaps making about forty feet in length in all, until they reached a certain place where there was a projection of brick to be put in, the brick projecting outwardly from the wall beyond its general surface, I will speak of that projection more particularly soon. Then the middle wall was built up to that place, or to about that place, and tied. But the inner wall, it is claimed by the plaintiff, was not brought up to that point. Upon the part of the defendant below we understand that the claim is that the inner wall itself was brought to about that point, so that up to that point there was in fact a twelve inch wall built in the ordinary way, that had been laid below, and properly tied together. But the claim of the plaintiff is that up to that point where the projection started there was but the outside and middle tier of brick, laid so that it made a wall, when the projection was reached, of only eight inches in thickness. At that height of wall this projection started. It was built in such a way that the first tier of brick which was to construct the projection projected an inch beyond the outside surface of tha wall, and the next course about that projected still another inch beyond that course, and another one projected still an inch farther, and the fourth course projected an inch still farther; so that the effect was in all to make a projection four inches in thickness, extending that far out beyond the general surface of the wall below. It is claimed by the plaintiff that this wall, after it had reached the place where this projection came in, was carried up in that way, viz: without extending and carrying up with it the inner inch tier of brick, but only the outside and middle tier and those tiers which constituted the projection; that that was carried up quite a distance — -several feet — -and then on top of that the projection of four inches was continued, together with another four inch tier of brick next inside of that, which last four inch tier was directly above and might be said to be a continuation of the original outside tier of the brick wall. It is claimed by the plaintiff that this manner of doing the work was known to the defendant, who was there some of the time, perhaps, and it was also known to Melchior Schaal, Jr., or at least to young Melchior Schaal,a nephew of the defendant, who was the foreman of the defendant in charge of these men in the absence of the defendant himself; that in fact he, the nephew, did part of this work himself, and at least laid what was called the “trigs” on top of the wall. The wall in the center of the building was to be carried up some fourteen inches above the level of the corners of the building, making a sort of a flat gable at that end to receive the roof. Plaintiff claims that the foreman laid this trig, as it was called, in the center upon the top of this wall, carrying up these" two courses upon the outside to the final height of the wall at that point, but leaving the inmost tier of the brick wall, as I have stated, away down below. And it appears by the testimony that in this laying of the trig, so-ca-lled, the plaintff Heck assisted — that is, he, standing on the studding or platform below, handed up the brick and the mortar to the foreman, who then climbed down from that place and directed the plaintiff to bring up those parts of the wall that had not been brought up to their full height; a line being stretched from the top of this trig down to the corners of the building, thus affording a gauge to determine the height of the wall at all places, along a gradual and uniform slope which was to be from the top of the trig to the corner of the building. The plaintiff claims that just after he had begun to comply with the orders of the foreman to lay up the brick upon the outside wall below the trig— about two minutes after he began that work, and two or three minutes after the foreman got down from the place, the wall fell — 'that is, the portion of the wall about where he was standing fell — outwardly, when he was necessarily standing upon a portion of the iacompleted part of it, and he being unable to grasp anything, or to save himself, was precipitated with the portion of wall that thus fell, landing upon the bricks that had fallen down just ahead of him, and that in so falling he received a very serious injury to his foot and other portions of the body, and was permanently injured.

He charges that this contractor, the defendant below, was guilty of negligence in two or three particulars, viz: in not providing or seeing that there was provided, a staging built and kept up so high, as the wall progressed, that the workmen could stand upon it, and not be required to stand upon any portion of the wall while laying it up. Plaintiff below claims that if the defendant below had done this, he, the plaintiff below, would have been standing upon a scaffold, and" if the wall had fallen, he would not have gone with it, and perhaps the wall itself would not have fallen if the work had been done from the staging. Plaintiff below also claims that the foreman was negligent in requiring him to lay up the outside course of this wall above this projection^ without seeing to it that the wall below had been completed to its full thickness, and the inside course brought up and properly tied. He claims that if that had been done, the projection would thus have been tied to the main wall, and would have been supported by it, so that it would have been in no danger of falling.

The claim of defendant below is that the wall was built in accordance with the usual way of building such walls; that he had no notice or knowledge that there was any danger about it, and that he was not chargeable with any such notice or knowledge; that it was usual to build such walls-without using a scaffold at the very top and by standing upon portions of the wall; that he had no facts from which he ought to be charged with notice or knowledge that he was putting his workmen in any danger; and he also claims that whatever danger there was, the plaintiff below had as much knowledge of, and was chargeable with as great a knowledge of, as was he himself, and if the plaintiff worked in a-place of danger, he was chargeable with contributory negligence, if by reason of his working there he suffered this injury.

This presents the main controversies in the case as they were presented to the jury, except that I might state that' the answer of the defendant below, while admitting that this man had been working for him as his apprentice, yet in the form of a general denial, denied that this wall fell in this manner, or at all, or that the plaintiff was injured, or that the defendant below himself was guilty of any negligence.

The trial of the case was conducted, as it would seem from this record, with a great deal of vigor and considerable vehemence, upon both sides. It was a hard and tenaciously fought case. Our late lamented brother Ford appeared in the trial of the plantiff below, and Judge Doyle for the defendant, Mr. Scott being there a portion of the time assisting in the defense.

There are throughout the record quite a number of exceptions that are claimed to several errors of the court. They are, in part such as these: When the attorney for the defendant was cross-examining several of the witnesses for the plaintiff, and had got to a certain place in his examination, counsel for the plaintiff interfered and assumed the right himself to ask the witness certain questions. In one case, as 1 reinember, the witness had made a certain answer, upon cross-examination, and counsel for the plaintiff said: “What do yon mean by that?” And there was an objection, and he said, “I don’t understand what the witness means.” Thereupon an alteration transpired between counsel in the nature of questions and answers, an replies, and finally the court seemed to allow counsel for the plaintiff to have his question answered. In several instances things of that nature occurred. We think the record- shows that the action of counsel for plaintiff was irregular. It would have been proper enough for the court to have stopped proceedings of that kind, and to have compelled counsel to await the time when he could take the witness for re-examination, and straighten up any of these matters; but at the same time, all the cases of that kind that are pointed out in the record, we think-come fairly within the rule which regulates the discretion of the trial court, and that in its rulings upon that matter it was simply exercising the discretion which'it had in the conduct of the trial, and that error cannot be predicated upon any action occurring at that time.

Counsel for plaintiff in error have argued another matter involving the court’s discretion also. Certain objections were made and exceptions taken for the reason that the plaintiff- below was allowed to bring witnesses in rebuttal to testify to certain matters that were claimed to be properly matters in chief concerning which plaintiff had examined certain witnesses, and perhaps in some cases the witness had been examined upon the same question in chief that was now propounded to him in rebuttal. The court, however, permitted that, and said in so many words that it regarded it as coming within the discretion which was allowed. While to have ruled the other way would have been perfectly proper, yet we cannot say that this was an abuse' of discretion, or that it seemed to have resulted in any substantial prejudice to defendant below.

Quite a large number of exceptions are thus grouped and disposed of. There is, however, a serious matter presented which does not come under this head, The plaintiff below testified that immediately after he had fallen, he noticed that defendant himself was standing in a doorway near by, in view of him, and that the defendant, noticing him, began to curse and damn him, and instead of coming to help him, ran the other way, and went up to the top of the building; and it was some time after that, when he had been removed, that the defendant first came to him and made any inquiry regarding the hurt. Against the objections of counsel for the defendant below, the witness was allowed to answer the direct question, as to what, under circumstances of that kind, the defendant below did say to him, and exception was taken. The answer was, ás I remember it, “How did that God damned fool fall down there?” or words to that effect. A motion was - made to rule this answer out, and the exception was fully preserved, and the question now presented is whether that was testimony that, under the circumstances of the case as they were then presented, was competent. It is claimed that it was after the accident; that the defendant, if liable at all, had already become liable by reason o£ facts that had then fully transpired; that this was a statement afterwards made, and its introduction was designed to prejudice the jury against him, as indicating that be treated the injury of the plaintiff brutally, and did not do what in fairness he ought to have done for him. On the other hand, it is argued by counsel that this was a part of the res gesta; that it was so soon after the transaction had taken place that it was a part of the transaction itself. And the court seemed to have admitted it under that view of the matter, Counsel for plaintiff below urged then, as the counsel now urges, that this contained an admission of the defendant of the mental capacity of the plaintiff; that he characterized him as a fool, admitting, therefore, that the plaintiff was not of fair mental capacity; and having done so, the jury had a right to consider that as indicating that the'plaintiff was unlearned, ignorant, and not of ordinary capacity, and therefore that his action in standing upon the wall and in doing as he did, must be judged in the light of what he knew rather than what he didn’t know. If this was a part of the res gesta, an expression made at the time regarding the cause of the accident, if made by the plaintiff below instead of the defendant, would also have been admissible. Suppose the plaintiff had cried out there, perhaps in answer to this question, that the wall had fallen, and that it had not been properly built, and that by reason of the negligence of defendant, or his foreman, the wall had fallen, he had tumbled out with it, and was injured. If this other statement was strictly a part of the res gesta, any other expression would be a part of the same transaction, if made by him. But I have in mind a case which would indicate that such an expression would not be a part of the res gesta, if made by the plaintiff below — ^a case decided by the supreme' court, where a person had been knocked over into a ditch by the side of the railway track by the car or enginejofjthe railway company. Some person immediately came to him, and while he was helping him out of the ditch, where he had been thrown, the injured person made an expression as to the cause of his being there, and how he happened to be there, and whether he had been knocked there by the engine, or something of that kind; but the supreme court held that that was simply a narration of a past occurrence and was not a part of the action itself, and was not admissible. Without discussing this matter at length, we think this expression on the part of Mr. Schaal cannot be admissible as a part of the res gesta — of the transaction itself, by which the plaintiff below was injured. We think it is rather too fanciful a claim to say that it might be an admission that the man was in fact under-witted, or was a fool. It was an expression, evidently, of surprise, and perhaps of anger, and if admissible, would hardly come under that head. The court admitted it, and we are to say whether, under any view of the case, it could have been properly receivable. If it was, although received for an erroneous reason, we will not be warranted in setting aside the judgment.

That question must be viewed in the light of the issues presented by the pleadings. The defendant below in bis answer had not admitted that the plaintiff was injured at all, but denied it; and had not admitted that the wall fell at all, but denied it; or that the plaintiff fell; and those were matters to be proven upon the trial by the testimony in behalf of the plaintiff below, Did this expression in any way tend to support those issues? That the wall had fallen, that the plaintiff had fallen with it, or had fallen at all, or had been injured? Now it seems at this time, if this testimony is true, that the defendant below was close by where he could observe the fact that something had happened. He looked at the place, and his attention was called to the fact that the plaintiff was there under certain conditions, and it seemed tc be called to his attention, and then recognized, as his statement indicates, that not only was he there, but that he had fallen there. And then the proceeded to run to the top of the wall, immediately after observing that, It may not be, as the case went to the jury, that it appeared to them as if there was any real contention or real claim upon the part of defendant below that there was no such thing as the wall falling, or that there was no such thing as that the plaintiff below had fallen; yet the issues presented, that, and the plaintiff below was entitled to any evidence that would tend fairly to support those issues, so far as they are material. Some of these at least, were material, and we think that we can see ,in that testimony what fairly tends to support the contention of the plaintiff below as against the absolute denials of defendant below.

The greater number of the other exceptions relate to objections regarding the form of the questions put to expert witnesses. It is claimed that the experts who were examined on behalf of the plaintiff below were not examined correctly; that questions were put to them in a form that was not admissible under the rules of evidence. It was claimed, for instance, in examining experts as to this wall being dangerous, or being laid up properly, that the order should have, been to ask the question how such a wall as that should have been laid upon the ordinary way of laying up walls by workmen; and what was the ordinary and proper way to build a wall; and when rhe expert witness had answered that question, and had stated the proper and usual way to lay up a wall, then the jury were fully put in possession of the necessary facts to determine whether or not this wall as it was built, as related by the witnesses, complied with that usual, and ordinary and proper way; but that on the contrary, counsel for the plaintiff below asked of the expert witnesses when he had exhibited what he claimed to be a plat or a picture upon paper, showing how the wall was in fact built, whether or not a wall in that way was built according to the usual and ordinary way or not, and if not, in what way it differed. That was substantially the way the questions were put, as a general thing. As to the mere form of the questions, while we think that the contention of counsel for the plaintiff in error is correct as to the proper method of making such proof ordinarily, yet we are unable to say that a departure from this ordinary and better form was really erroneous, or that the ruling of the court made in this particular in various places throughout the record may not be well regarded as coming fairly within those cases where the court has a discretion; and unless it resulted in some prejudice fairly appearing upon the record, it ought not to defeat the verdict or the judgment. And we think this may be said as to all such objections, They were, in general somewhat irregqlar, yet they were not calculated to mislead the jury, and the evidence which went in under them did not present the case unfairly for the consideration of the jury.

The real essence of the trouble in this case, and which under lies the consideration of a great many objections that were made in the 'course of the trial and to the charge of the court or its action upon requirements to charge, is this; whether in view of all the circumstances confessed in the case by the plaintiff below, he in fact has any case; whether in the laying up of such a wall as that, he being fully advised of the actual facts, was not in as good a position to judge as was the defendant below? He knew, for instance, that there was no scaffold. He knew that there was to be no scaffold. He knew that the wall had been laid up in the first place to the projection, or to the place where this projection was to be, as I have already said, He knew that the inner course was left down for several feet, and that the middle course was not carried up into quite a distance as far as the outside course, after this projection had been reached. All these particular facts were right before the eyes of the plaintiff, and he knew them as thoroughly as the defendant did or could be held to know them. But he testifies that he did not know in fact that he wall was liable to fall, and did not know the danger. The other witnesses, masons of long experience, who worked with him, and who were working upon the same wall, liable to the same danger, also say that they didn’t have any idea of there being any danger there, didn’t realize that there was any danger; and it would seem fairly, from the testimony, too, that neither the defendant nor his foreman knew, in that sense, of any danger from conducting the business in the way in which it was conducted; The question after all, in the case, is whether, under the circumstances, the master, through his foreman, was charged with any greater duty to know of the danger than was the workman himself. If he was, it was because he was in duty bound to take greater precautions beforehand than was the workman; it was because there was a danger that really existed there, and must exist there, or would naturally exist there, of carrying on the business in that way, which was not so obvious, so open, and so patent, that any workman could well see it. If the danger was so open and visible that the ordinary brick mason working there should notice it, or would notice it, or should be held obligated to notice it, it does not present a case for expert testimony at all.

In the case of Railroad Co. v. Schultz, 43 Ohio St., 270, the court, after reviewing the authorities in this particular, state the general proposition deducible from' them; and while reading only a very small portion, I call attention to what is said on page 282 in the sixth paragraph, although all of those paragraphs ought really to be read and considered in connection with this:

“6. Where it is practicable to place palpably before the jury the facts supporting their opinions, the witnesses should be restricted in their testimony to such facts, and the jurors left to form .their opinion from these facts, unaided by the mere opinions of the witnesses. ”

If these facts present all that was to be presented, then it was not a case for expert testimony, and the facts being known to the plaintiff below, there was no chance for his making a case, or any reason for his recovery at all. And the seventh paragraph also may be read in this connection, upon the next page — 28B.

A consideration of this would naturally bring an allusion to what has been held by courts generally in this particular as to what matters the injured party is chargeable with knowledge of, The duty of the master in providing safe appliances and machinery, etc., has been discussed by our supreme court quite a number of times, beginning with a case in 3 Ohio St., followed by a case in 4 Ohio St., and by a case in 5 Ohio St., and also by the case of Railroad Co. v. Webb, 12 Ohio St., 475, the opinion of which begins on page 486, and reviews at considerable length the authorities on this question, and finally slates the rule that is settled in Ohio upon this question; the rule being that the master is not a guarantor of the sufficiency of all of the appliances which he shall gat for the workman to use, but 'that in this particular he must use ordinary and reasonable care to provide safe appliances and machinery.

So the question is presented in this case whether or not there is any element in it which may show the master had omitted to exercise reasonable caution and care in this matter as to things about which the plaintiff himself was not fully appraised and of which he was not fully aware at the time he did the work and received this injury. There are cases found in various states which I have not now time to cite, whicü hold the rule to be this, substantially: That while the master is in duty bound to furnish appliances that are reasonably safe, and must not furnish any materials for his workmen to work upon that are defective and unsafe, yet he is also charged with the duty of using ordinary and reasonable care to determine whether they are safe or not; and although he might not have known of the defect, still, if, by the exercise of ordinary and reasonable care he would ¡have known it, he will be charged with a notice of a defect ¡that subsequently is shown to exist. These authorities hold as to the workman himself, that while he takes the chances of working with any defective appliances, or working in any dangerous situation, regarding which he knows the facts, «except where he has had a promise that the defect will be repaired and relies on that and continues in the employment, yet he is as much chargeable with the risk as is the master; and that it is only such matters as he knows that (he is thus chargeable with; and that he is not under he ¡same obligation always to institute inquiry and make search and determine beforehand whether or not there exists or may exist some defect about the machinery ,or appliances about which or with which he is working. While that rule as thus stated may be too broad, we think there is and must be recognized a difference in the rule as applied to the master and the workman; that while it may not be that it will be always necessary that the workman have actual knowledge of a defect, or the dangers therefrom, and there may be cases where the circumstances are such that he is grossly negligent by failing to inquire under the particular circumstances of some particular case; yet it cannot be said that be is under the same obligation to search for hidden defects or possible dangers that the master rests under.

This case presents the question in line with these considerations, whether the danger and the defects which here existed were such that the master ought to have known about, or the servant might be excused in not knowing. In this connection it was left'to the jury — and we think it might be left to the jury-~to consider who the plaintiff was; that he had never been an independent workman himself planning buildings, or raising walls, or determining their thickness, just how they should be laid up; but he was working ail of the time that he was working as a mason under the direction of others; and while he had acquired general skill and knowledge in the laying of walls in general, it does not appear that he had at any time been called upon to exercise his judgment regarding the safety of laying up such a wall as this. Neither does it appear with entire certainty that the danger that really existed of the falling of this wall, being built as it was, was such as would be perfectly apparent to the jury upon the mere recital of the facts of the case. The margin along this line is not very large. It is a difficult and narrow margin. And to say whether this is a case where the facts alone should have been given to the jury without the aid of experts, the jury being left to determine whether or not the danger did exist or would exist, or was such in kind or character as that the master ought to have been held chargeable with a knowledge of, and should have been held to have provided against it, is a matter that may now fairly go for the consideration of the supreme court; because while the supreme court will not look into the testimony to determine the weight of the evidence as bearing upon the one side or the other, the questions that are made and the exceptions that are taken as to the introduction of evidence and the rulings of the court as to expert testimony, and the final charge of the court and its action upon the requests, will present as a matter of law we think substantially the same question.

Now, briefly as to the rulings Upon the requests of the defendant below and the exceptions taken: There were no exceptions to the charge, except the exceptions taken to the refusal to charge certain requests proffered by defendant’s counsel. There are only four or five of them. Defendant, by his counsel, excepted to the refusal of the court to give to the jury in charge defendant’s request No. 1. That was a general request, that under the proof the jury would be directed to return a verdict for defendant. Based upon the considerations that I have already alluded to, we think that the court did not err in refusing that there was enough in the case to go to the jury. Defendant likewise excepted to the modification by the court of defendant’s request No. 3. The request was:

“The plaintiff is presumed to know the dangers incident to his business and to the work he engages to do, and tire defendant has a right to assume and rely upon the plaintiffs having the knowledge.”

The court says:

“Now, that we give you in charge, gentlemen; but we say to you that the evidence furnishes you with a knowledge of how long the plaintiff had been engaged in that business, and under the charge and direction of defendant. All this will be considered by you in that connection, because the parties will be presumed to have tnat knowledge which, their relations necessarily covered to each other.”

While that is not very clear, or the idea which the court?-, had in view, perhaps, is not clearly expressed, yet we think, that that request, might have been somewhat misleading; without some words calling attention to the facts of the case,, and that the jury, as the case went to them, had a right ten consider in what manner, during the four years of his ap--prenticeship, the plaintiff had been working, and how far;, therefore, the defendant below had a right to rely upon the plaintiff’s experience and knowledge.

“Any danger which the defendant could by the exercise of ordinary care ascertain, the presumption is that plaintiff, could also ascertain.”

Judge Doyle: “Is that given?”

The Court: “Yes.” £ (To tbe[Jury:) “We are asked say to you, gentlemen, that ‘The mere fact that no scaffold! was furnished higher or different from what was furnished; cannot be the basis of any recovery in ’ this case. ’ AmD, in that connection, is ¿dded: ‘There is no claim that any complaint was made of the want of a scaffold and a promise that it would be supplied, which induced plaintiff to continue in the work.’’’

The question whether there was any such claim made, being answered that there was no claim made, then the court ¡gave that request. Then occurred the following instruction:

“The conditions that would be deemed safe to workmen with ordinary skill in the business, would be justly regarded as safe by the defendant, unless the proof shows that by reason of some peculiar knowledge the defendant knew that it was unsafe”

Also:

“The fact that the plaintiff had not completed his four years’ apprenticeship, makes no difference, If he had ordinary intelligence, he was bound to apply it, and if by the exercise of ordinary care he could have known the conditions he was working under, he is presumed to know them, and the law charges him with such knowledge.”

The fifth request was proferred in this way:

“The mere fact that no scaffold was furnished higher or different from what was furnished, cannot be the basis of any recovery in this case.”

Then the court added:

“It is true as a matter of law that the mere absence of the scaffold itself, at a particular height, would not warrant a recovery. The plaintiff can recover only because of injury received by him caused by negligence upon the part of the defendant, and the mere fact of the scaffold not being at a sufficient height, standing by itself, would not warrant a finding by you of a judgment against tbe defendant.”

We do not see how that modification could or did result in any prejudice to the defendant below, or gave a rule •of law that would tend to mislead the jury, or that it ap-pl:ed any principle that ought not to be applied in this case against the defendant below.

While I am sorry to have been obliged to stumble over this matter in this way picking up as I could along, and perhaps omitting some things that ought to have been mentioned, I will say that we have considered the whole record, and while some of us, and perhaps all of us, think that upon the real facts of the case it may be doubtful whether it presents a case that ought to finally result in the verdict that was given, yet we are unable to say, applying the ordinary rules governing reviewing courts, that the record presents any matter so erroneous and ..prejudicial that wa ought to disturb the judgment. For these reasons the judgment will be affirmed.

I will say in passing, that viewing the injury that wasi testified to as having been received by the plaintiff, it would not appear that the jury were led into giving any extravagant verdict, so far as the amount is concerned, by any passion or prejudice.

The judgment will be affirmed, but a certificate of reasonable cause for t±ie proceedings in error will be entered.


author: PARKER, J.

text:
    (Sixth Circuit—Lucas Co., O., Circuit Court
    Oct. Term, 1898.)
    Before King, Heynes and Parker, JJ.
    FORT ORANGE OIL CO. v. JOHN F. WICHMAN.

      Contract partly printed and partly written — 'Writing controls.

    (1). In the construction of a contract, (oil and gas lease), partly printed and partly written, where there is an ambiguity arising out of inconsistency of the printed with the written parts, tbe written parts will control.
    (2). (Provisions as to “location money” construed, and held to apply to such wells only as lessee was by the term of the lease required to drill.)
    Error to the Court of Common Pleas of Lucas county»
   PARKER, J.

On the third day of January, 1893, the defendant in err- or, being the owner of certain lands in ¡Sandusky county, executed what is commonly termed an oil and gas lease upon the same, the grantee or lessee therein named being his fson John H. Wichman. Certain rights and privileges are «thereby conferred upon John H. Wichman, bis heirs, suc■cessors and assigns. This instrument contains a provision ¡requiring the lessee or his assigns operating under this liease to pay $150.00 for each location of certain oil wells to be drilled by the lessee or assigns. The question presented for consideration in the court below and here is •whether this lease requires that the lessee or assigns shall, ipay this location money on four wells which are required vto foe drilled under it, only, or upon any other wells that may be drilled in addition to the four.

It appears that by certain assignments the Fort Orange Oil Co. came to be the owner of this lease, and vested with the rights of the lessee; that before it became the owner, the four required wells had been drilled upon the premises, and the location money had been paid on account of those four wells. Since The Fort Orange Oil Oo, has come to be the owner of the lease, it has drilled nine additional wells. The action was instituted for recovery on account of ten wells, font it developed upon trial that if there was any liability for any wells in addition to the four, it was for nine only.

As appears from the bill of exceptions, upon the trial of the case the parties agreed upon the following facts:-

“It is agreed by and between the parties hereto that since the assignment of said lease to the defendant, it has located and drilled nine wells on said premises, one of which produces absolutely no oil, three were light wells, and were, operated for a very short time only, five were fair wells and have been regularly operated. That the defendant has also <ereeted machinery over and cleaned out one oil well drilled on said premises by the Paragon Oil Company before the •date of said lease, which well has so been operated by defendant. It is further stipulated that nothing herein contained shall prevent the parties from offering further proof, subject to the usual objections and exceptions.’’

And upon the theory that there was some ambiguity in the lease with reference to the matter in dispute, the court admitted oral proof of additional facts in order that the court might be in possession of the facts and circumstances surrounding the parties at the time this lease was made, and in order that the court might be advised as totha construction the parties themselves had by their conduct put upon the lease with reference to this matter.

The trial resulted in a finding and judgment in favoT of the plaintiff below and against the defendant below for $150.00 on account of each of these nine wells,making a total of $1350.00, and interest.

Our attention has been called to and we have carefully considered the opinion of the learned judge of the lower court. He seams to have devoted to this question considerable thought and attention, and his opinion is certainly entitled to great respect. 1 therefore regret, since the duty has fallen upon me to announce this opinion, that I have not had an opportunity to formulate our ideas and reduce them to writing, in order that I might present our thoughts upon the subject with more care and clearness, and perhaps with more force, since we find ourselves unable to agree with his conclusions.

The lease in question reads as follows:

“In consideration of the sum of (one) dollars, the receipt of which is hereby acknowledged, (John F. Wichman, of Sandusky county Ohio), first party, hereby grants unto (John H. Wichman) second party, its successors and assigns, all the oil and gas in and under the following described premises, together with the right to en*er thereon at all times for the purposes of drilling and operating for oil, gas, or water, to erect and maintain all buildings and structures, and lay all pipes necessary for the production and transportation of oil, gas or water, taken from the said premises, excepting and reserving, however, to first party the (one-sixth) part of all oil produced and saved from said premises to be delivered in the pipe line with which said second party may connect its wells, namely all that certain lot of land situated in the township of (Madison) county of (íáandusky)> in the state of (Ohio), bounded and described as follows, to-w:.t: (then follows a description of a tract of ninety acres), to have and to hold the above premises on the following conditions. If gas only is found,second party.agrees to pay (three hundred) dollars each year for the product of each well, while the same is being used off the premises, and the-second party tó have gas free of cost to heat (all) stoves indwelling house during the same time. Whenever'first party shall request it, second party shall bury all oil and gag-lines (below plow depth), and pay all damages to growing: crops by reason of burying and removing said pipe lines. No well shall be drilled nearer than (300) feet to the house or barn on said premises, and no well shall occupy more than one acre. In case no well is completed within (60)-days from this date, then this grant shall become null and void, ■ The second party shall have the right to use sufficient oil, gas or water, to run all necessary machinery for operating said wells and also the right to remove all its-property at any time. (A second well to be drilled within four months, a third well within eight months, a fourth well within twelve months from date of lease, second party to pay 1150. 00 for each location when the location is made, wells1 to be located by both parties. If wells are not drilled a® stated, second party only to hold fifteen acres for each well so drilled. Second party is also to protect the lines. Steam-lines to be laid north, south, east and west. It is understood between the parties to this ageement that all conditions between the parties hereunto shall extend to their heirs, executors and assigns.
“In witness whereof the parties hereto have set their hands and seals this (23d) day of (January) A. D. 189(3).,r

It is signed by the parties, witnessed and acknowledged in due form as required by law, For convenience in arriving at á better understanding of the question, the stenographer may enclose in parenthesis the written' portion® of so much as I have read.

It will be observed that the language is not in all respect® grammatical — 'that the^construccion is not grammatical. That arises largely, but not entirely, out of the fact that a printed blank is used, and care does not seem to have been exercised to make such slight alterations as would be required to make the instrument read grammatically. In the provision “the second party shall have the right to use sufficient gas, oil or^water to run all necessary machinery for operating said wells^and also the right to remove all its property at any time,” while this sentence is grammatical in form, yet it will be observed that up to that point in the lease there had.’been no wells referred to that could have been properly described as “said wells”, the only well theretofore referred to specifically being the one well which the lessees were required to complete within a period of sixty days. This seems to have arisen from the circumstance of the use of a printed blank, and a lack of care to make the written and printed portions entirely conformable the one to the~other. Similar inconsistencies are doubtless due to the same cause. Following the sentence which I have just read comes a part of the lease which is written, and with respect to which this controversy and difference of opinion arises.

“A second well to be drilled within four months, a third well within eight months, and a fourth well within twelve months from date of lease; second party to pay $150 for each location when location is made, wells to be located by both parties. If wells are not drilled as stated, second party only to hold fifteen acres for each well so drilled. Second party is also to protect the lines. Steam lines to be laid north, south, east and west.”

Then follows the provision which is printed in the form, beginning with the words “It is understood between the “parties,” etc. The question turns upon the construction to be given to this written part of the lease, andmore especially to these words: “Said party to pay $150 for each location when location made.” We are to determine whether those words refer to all wells that may be drilled under this lease, or whether they refer to the four wells the drilling of which is required under the lease.

It will be observed that there is no requirement to drill' more than four wells. With reference to the four wells the lease contains a provision that in the event that the first is not drilled within sixty days from date, the grant shall become null and void. If the four are not drilled, the first having been drilled, then the lessee is to hold on account of each well drilled less than the full number oí four, but fifteen acres of the ninety.

In construing this lease we apply the well settled rule, that in cases of ambiguity arisising out of inconsistency of the written and printed parts of a contract (a printed blank form having been used), the written parts will control.

In our judgment the provision as to the payment of $150 on account of each location applies to the four wells only. We are brought to this.conclusion not only from a consideration of the language as we find it in the lease, but from a consideration of the fact that this part of the lease is written, while other provisions refering generally to wells that are not required to be drilled, but may be drilled, are printed; and from a consideration of the facts and circumstances surrounding the parties, and the results to be accomplished by the parties, that would naturally be affected by the provisions respecting this location money. We are not aided a great deal by the oral testimony as to the conduct of the parties to this lease after the time that the Fort Orange Oil Oo. came to be the owner thereof. It may be said, however, that the testimony does'tend to show that the lessor did not seem to regard his right to recover location money on account of any wells in addition to the four as being clear. At all events, he did not proceed with promptness to assert his right to such location money. According to his own testimony, he took some part in the location of the wells first drilled upon the premises by the Fort Orange Oil Co., and upon the occasions when those locations were made he did not assert any right to this, location money, or make any demand for it, those being the times it became due and payable, if at all. It appears, however, that after a well which is designated as No. 7, was drilled, he made a demand for location money on account of the wells previously drilled. This is disputed by an officer'of the Fort Orange Oil Co. upon whom plaintiff claims he made this demand. But assuming that he did make the demand at the time and place and in the manner stated, it was not made at the time or place that one believing that he had a clear right to receive this location money would have made the demand, viz: upon the premises at the time the location was made, he himself being present and assisting in making the location.

This demand, assuming that it was made, does not appear to have been followed by any other demand or any other effort to collect this location money, until after the nine wells were completed. Then his claim appears to have been made with some promptness and vigor, resulting in this suit. As I say, we do not give a great deal of weight to that, but we give more to the considerations that must have influenced the parties to the contract when fixing its terms. A large number of actions have been brought before this court involving the rights of lessors and lessees under leases of this character and the lessee has always been urgent for the drilling of more wells and with greater promptness and rapidity than the lessee has been willing to concede his right to have or demand. The interests of the lessor seem to be subserved, according to the opinion of lessors generally, by the drilling of a great many wells and the drilling of those wells promptly,sc that the lessor may receive from the leased premises at as early a date as possible his share of the oil, generally one-sixth. The cost of drilling and operating the wells falls upon the lessee. He is therefore found reluctant and sometimes tardy in the prosecution of this work, generally desiring that he may be relieved from the drilling of a great many wells, or from pushing the prosecution of this work, so that he may be saved the expense of putting down many wells, and operating them, and may secure the oil that he is entitled to under his lease from a few wells rather than from a great-many. In the case at bar the interest of the lessor would-dictate that no obstacle should be placed in the way of drilling additional wells other than the four the drilling of which he has specifically required. His interest would not be injured but would be promoted by the rapid drilling of additional wells. Therefore we cannot conceive that under such circumstances the lessor would desire or intend that the lease should be so framed as to place obstacles in the way of drilling additional wells. It is apparent that he would desire to remove all such obstacles. So many cases have come before us indicating that this is the attitude and these the objects of parties upon entering into these contracts called “oil leases”, that we cannot ignore the knowledge thus acquired in the case at bar.

In order that the lessee may secure the right to all the oil underlying the whole premises he is required to drill four wells. If he drills a less number than four, he fails to obtain this right as to some part of the land, i. e., upon the drilling of one well he acquires a right to the oil underlying fifteen acres; upon the drilling of the second well he acquires a right to the oil underlying fifteen acres more; the third well gives the right to fifteen acres more, making forty-five acres; and upon the drilling of the fourth well, the lessee’s right to the remainder of thirty-five acres (in all ninety acres) is established. It is seen, therefore, that by these provisions whereby the right of the lessee to drill upon and obtain the oil underlying the premises is made to depend upon the drilling of these wells, an inducement is offered for the. drilling of such wells and the payment of the location money of 1150.00 for each well; so that the lessor has some assurance that the wells will be drilled, and that he will obtain this location money. If the wells are not drilled, his land or part thereof, as heretofore pointed out, remains unaffected by the lease, and he is at liberty to lease to another or drill upon it on his own account. But, as before indicated, there is no such inducement to the drilling of additional wells. The lessee may if he choses (laying aside for the moment the provision as to protecting the lines), cease from drilling and depend upon the operation of the four required wells for the production of the oil underlying the premises.

No disadvantage can result to the lessor from the drilling of additional wells, but only advantage Therefore the lessor would not be inclined to impose what might be regarded as a penalty upon the lessee if he should seek to sink additional wells. We feel bound to believe that the parties had these considerations in mind when they drafted the lease.

It is urged in argument that the words “wells to be located by both parties,’’ appearing in the written clause, applies to all wells that may be drilled, and that since it is a part of the same clause and sentence as that containing the provision as to location money, it throws light upon the latter and clearly indicates that it also applies to all wells. We are of the opinion that the word “wells’’ as here used applies to the four wells only. Since a part of his land is to be held and operated on account of each of these wells, i.e.., fifteen acres for each of the first three ana forty-five acres for the fourth, and since the tracts thus to. be held are not distinctly marked out or defined, but would naturally be held to be tracts contiguous to the wells drilled on account thereof, the lessor would have a special interest in the location of these wells. He would also have a special interest therein growing out of the fact that the lessee might drill a less number than four, or at all events, not more than four, snd the lessor would naturally desire to have the required wells so located as to develop as much as possible of his land. This having been accomplished and the drilling of additional wells being optionaLjwith the lessee, who has become the owner of all of the oil underlying the whole premises (less the royalty-), the same consideration that would impel the lessor to forego any claim for additional location money would impel him to refrain from interfering with the lessee in his further operations upon the premises-Again, we find in the lease this provision: “No well shall be drilled nearer than 800 feet to the house or barn on said premises,” etc. It is clear that this is not intended as a limitation upon the right of the lessor to have wells drilled at one place on the premises, but is intended as a restriction upon the right of the lessee to drill upon the premises, Now if the lessor has a right to participate in the location of all wells, which would involve a right to object to drilling at places not agreed upon by himself, then this provision as to drilling within 300 feet of the buildings is idle and useless. We are bound to so construe this instrument as to, if possiblle, give effect to all its parts and provisions. To our mind this provision,taken in connection with that as to the location of wells, indicates clearly the intention of the parties that both should agree upon the location of the four required wells, but that the lessee alone should determine the location of any additional wells, subject to the restriction that they should not be located nearer to the buildings than 300 feet.

This lease also contains a provision in the written part to which I have called attention “that second party is also to protect the lines” A construction has been put upon similar language in oil leases by the courts,' viz: — that if necessary to the protection of this tract, in order that the lessor may receive his share of the oil ^supposed to be underlying the district of which it is a part, the lessee shall drill additional wells. We can hardly conceive that with respect to that obligation, which is imposed upon the lessee, the lessor would undertake to deter him from doing that which would bejior the special advantage of the lessor, by adding a provision that when he came to drill the additional wells necessary for the protection of the-lines, he should pay $150 to the lessor on account of each of such wells. And yet that would follow from an adoption of the construction of his lease urged on behalf of defendant in error.

King & Tracy, for Plaintiff in Error.

Campbell, O'Farrell, and Beard & Beard, for Defendant in Error.

After a careful consideration of what must naturally have affected the minds of the parties when they sat down to pre« pare this lease, we are led to the conclusion that the lessor did not intend nor desire that any stipulation should be contained in this lease which would deter the lessee from fully and promptly developing and producing the oil underlying lessor’s land. Therefore, we are unanimously of the opinion that the meaning of this language as it is written and as it was intended is, that $150,00 of location money should be paid each for the four- wells only. This conclusion br ngs us to a reversal of the judgment of the court below,


text:
    (Sixth Circuit—Lucas Co., O., Circuit Court
    Oct. Term, 1898.)
    Before Haynes, King and Parker, JJ.
    WILLIAM H. H. SMITH v. THE BUTLER & WARD CO.

      Guaranty — When binding as to past transactions as well as to future advances — Consideration—
    (1). A guaranty is binding and enforceable as to past transactions or advances though as to these alone it may be without consideration, if it also covers and is supported by the consideration arising out of future transactions or advances.

      Same—

    (2). Whether the principle that “the promise to do or the doing of that which one is already under legal obligation to do, does not form a consideration for a promise,” applies to a promise made by a third person to .whom the promisee was not originally bound — Quere.
    Error to the Court of Common Pleas of Lucas county.
   PARKER, J.

This is a proceeding brought to reverse a judgment obtained by the defendant in error against the plaintiff in error in the court of common pleas of this county.

The cause of action stated in the petition in the court below arises out of the following circumstances: Charles Truman & Co.,in the years 1895 and 1896, were manufacturers of bicycles in the city of Toledo. The Butler & Ward Co., a corporation under the laws of New Jersey, were manufacturers and vendors at an eastern city of certain bicycle parts, among them bicycle saddles. In the season of 1895 Truman & Co. entered into negotiations with the Butler & Ward Co, for the purchase of certain bicycle saddles. In the course of that negotiation it came to the knowledge of The Butler cfo Ward Co., that W. H. H. Smith, plaintiff in error, was guaranteeing the performance of contracts entered into by the Truman Co. The Butler & Ward Co. thereupon applied to him for a guaranty of the payment of such indebtedness as might be contracted by Truman & Co. in the purchase of bicycle parts from them, and he gave a written guaranty, which reads as follows':

“Toledo, O., 5-13-1895 (May 13, 1895.)
“Messsr. Butler & Waid,
“Gentlemen: Your favor of the 11th inst. is at hand. I will guarantee the account of Truman & Oo. for the year (1895.)
“Respectfully,
“W. H. H. Smith.”

On July 13th, 1895, Truman & Co. gave an order to the Butler & Ward Oo, for 1000 ’96 saddles,- styles W and X, deliveries to be specified later, with a clamping pin 7-16 hexagon head, and other directions about the style of the saddles. The prices to be paid were stated in the order, and this is stated with reference to deliveries:

“It is understood that deliveries are to commence as soon after Oct. 1, 1895, as we shall specify — not later than Sept. 1, 1895 — ^and the order to be completed by June 1, 1896. Terms sixty days.”

This order was accepted by the Butler & Ward Co., and in pursuance of requests from Charles Truman & Co. they from time to time shipped bicycle saddles under this contract for 1000. The whole number of 1000 was not delivered during the year 1895, and on December 19, 1895, Butler & Ward wrote to plaintiff in error as follows:

“Mr. W. H. H. Smith,
“Toledo, O.
“Dear Sir:
“Your guaranty for goods purchased from us by Chas. Truman & Co. of Toledo, O., for the year 1895 will expire on the 31st da^ of this month. We have their order for a number of saddles to be shipped during the present season of 1896, and we write to inquire if your guaranty will cover purchases for the coming year. If so, kindly put the same in writing and send it to us at your earliest convenience, and greatly oblige,
• “Respectfully yours,
“Butler & Ward.”

It will be observed that this is not in the form of a re(quest for a new guaranty, but rather of a construction of ¡the guaranty already given. In response to this the plain - ¡tiff in error, on December 21, wrote as follows.

'“Messrs, Butler & Ward:'
“Gentlemen: — Your favor of the 19th inst, is at hand, The necessity for this guaranty is not apparent for 1896, as I think Chas. Truman & Oo. are in good shape. Still, if it will facilitate their business I am willing to guarantee iheir bills with you for 1896.
“Yours truly,
“W. H. H. Smith.”

Tt will be observed that there is a slight change in the phraseology of this guaranty from that used in the guaranty of May 13, 1895, and some deviation from the phraseology used in the letter of Butler & Ward of December 19th, requesting some further assurance, the guaranty of May 13, 1895, being “I will guarantee the account of Charles 'Truman & Co. for the year 1895.” The inquiry on the part of ■Butler & Ward is whether Smith’s guaranty will “cover purchases for the coming year”, and the response being that he is willing to “guarantee their bills for the year 1896.”

In the year 1896, 200 saddles (I believe that is the number) were furnished, completing the contract for 1000 which ¡had been entered into in the year 1895, and another 100 ■saddles were furnished which were not-covered by that contract, but it is conceded that the guaranty of December 31, 1895, covers that 100. It is claimed that by the terms of •the guaranty of May 13, 1895, and also by that of December 31, 1895, the 200 saddles furnished in 1896 were covered. These 300 saddles were not paid for by Truman & ■Co. They made default — became insolvent. Smith, the .•guarantor, failed to pay, and this action was instituted to recover the price of the 300 bicycle saddles so furnished.

It is not clear that the guaranty of the 13th of May, 1895, covers the 200 bicycle saddles furnished in 1896 under the contract for 1000. On the other hand, it is not clear that it does not cover them. But we do not pass upon that. Assuming that it does not cover the saddles, it is urged here by the plaintiff in error that there was no consideration for the guaranty of December 21, 1895, with respect to the 200 bicycle saddles furnished under the contract for 1000 which had been entered into prior to the time of the guaranty of December 21,1895. The principié is invoked by the plaintiff in error that a promise to do or the doing of that which one is already under legal obligation to do, does not form a consideration for a promise, and that therefore the guaranty of December 21, 1895, was, as to the plaintiff in error, with respect to these 200 saddles, without consideration. Assuming that this principle would be applicable to the case of a promise made by a third person to whom the promisee was not originally bound, we do not think it can be successfully invoked by plaintiff in error under the circumstances of this case. The acceptance of the order for 1000 saddles was upon the condition or understanding, as clearly expressed by the correspondence, that payment should be guaranteed by the plaintiff in error. The defendant in error was not bound, in our opinion, to furnish the saddles called for after the expiration of the time limit of bis guaranty of May 13th, 1895, until that time bad been extended ora new guaranty given covering the saddles called for. Hence the furnishing of the 200 saddles constituted a consideration for the guaranty of December 21, and the principle invoked by plaintiff in error is not applicable. And this is so whether the guaranty of December 21, 1895, be considered as a mere extension of that of May 13, 1895,or whether it be considered as an original guarantee. Upon another ground we think the judgment of the court of common pleas in this case is right,and should be sustained. The guaranty of December 21, 1895, is unquestionably'supported by the consideration arising from the furnishing of the 100 saddles not covered by the order of 1895 for 1000 saddles, and by its terms it covers the 200 included in that order but furnished in 1896. Now, a guaranty is binding and enforcible as to past transactions or advances though as to these alone it may be without consideration, if it also covers and is supported 'by the consideration arising out of future transactions and advances. The authorities in support of this are numerous, clear, and satisfactory.

George H. Beckwith, for Plaintiff in Error.

I. N. Huntsberger, for Defendant in Error.

For the reasons given the judgment of the court of common pleas will be affirmed.


author: Day, J.

text:
    (Third Circuit—Paulding Co., O., Circuit Court
    Oct., Term, 1898.)
    Before Day, Price and Norris, JJ.
    J. A. WOOLARD et al. v. GEORGE L. FAVORITE.

      Sheriff — Refusal to pay over — Liability of bondsmen.

    (1). Since the act of April 20th, 1868, S. & S., 734, sec. 1218, R. S., the failure of a retiring sheriff to pay over to his successor in office all moneys received by him and remaining in his hands constitutes a breach of his official bond.

      Same—

    (2). The failure of a sheriff, on the order of the court to pay out to the party entitled, moneys in his hands as such officer does not, alone, constitute a breach of his official bond so as to mane the sureties thereon liable To have such effect, the party entitled to payment must make demand or offer reasonable opportunity for such payment.

      Two sueeesive bonds during one term of office. — Second bond liable unless liabity of first shown—
    (3). A sheriff serving a single term under two bonds in force successively, failing to pay over to his successor in office, moneys received and remaining in his hands as such officer, at the expiration of his term, makes breach of his official bond; and the bond last in force is liable for such breach, unless it be affirmatively shown that such breach became absolute during the ex- • istence of the first bond.

      Error to the Court of Common Pleas of Paulding county.
   Day, J.

Plaintiff’s action in the lower court was predicated upon an alleged breach of the conditions of a sheriff’s bond, and was to recover $178, and interest, alleged to be due plaintiff from the sheriff and the sureties on his said bond, by reason of such breach.

The particular breach complained of consisted in failing and refusing to pay over to the person entitled to receive it, or his successor in office, moneys which came into his possession as said officer. Judgment is prayed^against the sheriff and the sureties on his official bond.

Three of the defendants, named Woolard, Atwill and Windiate. make answer; the other defendants made default. The answer shows, in substance, that Swaine, the sheriff whose official bonds are in question, was elected sheriff of Paulding county at the general election in 1887, for the term commencing in January, 1888, That shortly before his induction into office in December, 1887, he duly gave an official undertaking, which was accepted and approved, with sureties other than the three answering defendants, and under said bond said Swaine entered upon the duties of the said office of sheriff, and continued to act in that behalf under said bond until on September 22nd, 1888, when upon proper proceedings had, a new bond by the sheriff was required, given, duly accepted and approved, with the answering defendants as sureties; that the. said sheriff duly made a sale of real property on July 7th, which sale was by the court approved and confirmed on July 12th, 1888, at which date the court ordered the sheriff to pay over the proceeds of the sale to the parties entitled according to the priorities then declared, and the residue, if any, to George L. Favorite, who held the equity of redemption in the land sold, which order of the court for the payment of money to Favorite, the said sheriff, then and always omitted and failed to obey and perform, and thereby and then failed to perform an official duty, whereby the sureties on his official bond became and are liable. The entire contention of the, answering defendants, based on the facts stated, is in few words: that the breach of official duty for which the sheriff’s sureties became liable, occurred on July 12th, 1888, and long before the answering defendants became sureties' or assumed any liability at all, and for that reason the sureties on the original bond are alone liable.

A demurrer was sustained to this answer, and the defendants not desiring to amend or further plead, a judgment, was entered on the petition for the plaintiff and against the answering defendants for the amount of the claim asserted, with interest and the costs. This action of the court did not content the answering defendants, so they prosecute error and seek a reversal of the judgment because of prejudicial error, said to be manifest on the face of the record.

The only question presented is as to the propriéty of the ruling and judgment of the lower court upon the demurrer to the answer. There is and can be no dispute or difference-of opinion between counsel and the court as to the liability of the sureties on an official bond for a breach of official duty on the part of the sheriff, if the breach occurred during the existence of the bond; or of non-liability, if it occurred before or after the bond had a legal valid existence, and so in such case it becomes all important to ascertain, and determine the precise date on which the breach became-absolute. If in July, there was'no second bond in existence, and the sureties on the original bond became alone-liable; if after September 22nd, 1888, the original bond-having become invalid, the sureties on the second or new bond became alone liable.

The theory of the plaintiff in error is, that the order of the court to pay pver moneys in the sheriff’s hands to the party entitled, and an omission of the sheriff to do so, constituted such a breach of official duty as made the sureties on the then existing bond liable, and the 31st Ohio' St., 378, is cited as authority for the contention. That authority does not sustain the claim. We think it has no application to the facts pleaded under the law as it now is. The facts upon which the decision was predicated area© prior to the passage of the act of April 30th, 1868, 8. &r S., 734, when by law there wa3 no duty resting on a sheriff to pay over moneys remaining in his hands to his secr-cessor in office, Then the sheriff dealt directly with, and paid out money in his hands, on the order of the court, to the party entitled to receive it; and he could not acquit himself or his sureties, by paying to his successor, any more: than by paying to a stranger. The act of April 30th, 1868', changed all that,and at all times since that date it has been the lawful duty of a sheriff, to pay over to his successor in office, all moneys remaining in his hands upon his retiring from office, and a failure to do so is an absolute breach of official duty, making the sureties on his bond liable. The act of April 30th, 1868, by subsequent codification, has become sec. 1218, Revised Statutes., and was the law at the date of the transaction in this case. The section is as ' follows: Sec. 1218:

“The sheriff upon retiring from office, shall pay oveir to his successor in office all moneys received by him,then remaining in his hands, and deliver to his successor in office all' notes, mortgages, and other evidences of indebtedness, and all books, blanks and stationery belonging to bis office;, and each sheriff shall demand and receive from his predecessor the books and papers aforesaid”.

The provision is mandatory: “he shall pay over to hist successor all moneys received by him and remaining in his; hands”. A failure to obey this mandate of the law wouldl clearly be an infraction of a legal duty. This provision of the law, however, would not prevent an absolute breach of duty prior to the date of expiration of the term of office. A complete breach might very well occur before that time. As for instance in the case before us, if the party entitled to receive the residue was present, fully identified as the proper person, and was demanding payment of money rightfully his own, in the sheriff’s hands, and the sheriff, conceding the rightiousness of the demand, refused and omitted to pay over, such conduct would clearly, we think, constitute a complete breach of duty, making the officer and his sureties directly liable to an action on the bond. But it was not the duty of the sheriff to pay out, even on the order of the court, in any event and under all circumstances, or at all, unless reasonable opportunity for payment were presented. If the party entitled to be paid, was absent or unidentified to the reasonable satisfaction of the sheriff, or if, for any sufficient cause, the propriety of payment out was a matter of doubt with the officer, it would be his duty to withhold payment until his reasonable doubts were removed, and in doing so he would only be in the exercise of reasonable prudence, and would not be guilty of any infraction of duty. None of these suggested fatfts are made to appear in the answer. The- only averment in the answer on this head is, that on July 12th the court ordered the residue of’the money paid out to the owner of the land, and that the sheriff failed and refused to pay the same. The burden is on the party seeking to avail himself of the fact of a breach to state all the facts, or sufficient facts to clearly show that a breach has occurred. In our opinion, the answer does not do this; the facts stated are not sufficient to constitute a defense to the petition, and the lower court did well to sustain the demurrer. We pre-ceive no error in the record, and the judgment is affirmed, with costs.

Snook & Wilcox, for Plaintiff in Error.

W. H. Phipps, for Defendant.