author: SWING, J.

text:
    INJUNCTION — TAXES.
    [Hamilton (1st) Court of Appeals,
    1913.]
    Jones, O. B., Swing amd Jones, E. H., JJ.
    Standard Oil Co. v. Wm. A. Hopkins, Treas.
    Injunction Against Collection of Taxes Exclusive Remedy to Correct Unlawful Additions by Board of Review.
    Injunction against collection of taxes is the proper and only remedy to review a board of review’s action in “arbitrarily and capriciously” and without evidence or information adding to tax returns; act 102 O. L. 224 makes no provision for review by the state tax commission by error or appeal.
    [Syllabus approved by the court.]
    Demurrer to petition for injunction.

      G. W. Baker, for plaintiff:
    Cited and commented upon by the following authorities: Baioson v. Schott, 7 Circ. Dec. 256 (14 R. 94) ; Fratz v. Mueller, 35 Ohio St. 397; Hayes v. Yost, 24 O. C. C. 18 (4 N. S. 455) ; Batterman v. Niehaus, 2 Circ. Dee.’ 673 (4 R. 502) ; Musser v. Adair, 55 Ohio St. 466 [45 N. E. Rep. 903] ; Davies v. InvestT ment Go. 76 Ohio St. 407 [81 N. E. Rep. 755]; Hagerty v. Huddleston, 60 Ohio St. 149 .[53 N. E. Rep. 960] ; Jones v. Davis, 35 Ohio St. 474; Engle v. Sohn, 41 Ohio St. 691 [52 Am. Rep. 103] ; State v. Jones, 51 Ohio St. 492 [37 N. E. Rep. 945] ; Mc-Millen v. Anderson, 95 U. S. 37 [24 L. Ed. 335].

      T. G. Pogue, Pros. Atty., J. V. Campbell and G. A. Groom, Asst. Pros. Attys., for defendant.
   SWING, J.

This was an action by way of injunction to enjoin the collection of taxes which the plaintiff claims were illegally assessed against it. The gist of the action is set forth in the following allegation: “On September 30, 1912, the said board of review, arbitrarily and capriciously and without any evidence or information whatsoever to warrant such action, added the sum ■of $4,123 to the tax return of plaintiff. ’ ’

To this petition a demurrer was filed.

The petition states a good cause of action, and injunction is the proper and only remedy. Rawson v. Schott, 7 Dec. 256 (14 R. 94); Jones v. Davis, 35 Ohio St. 474; Musser v. Adair, 55 Ohio St. 466 [45 N. E. Rep. 903]. The law passed May 11, 1911, 102 O. L. 224, makes no provision by which the taxpayer may have his case reviewed by the State Tax Commission either by error or appeal, and does not pretend to take away from the taxpayer his right by injunction to set aside an illegal act by the board of review.

Demurrer overruled.

Jones and Jones, JJ., concur.


source: Caselaw Access Project

author: POLLOCK, J.

license: Public Domain

text:
    PAYMENTS.
    [Ashtabula (7th) Circuit Court,
    September Term, 1911.]
    Norris, Pollock and Metcalfe, JJ.

      Orwell Banking Co. v. Hattie L. Pelton et al.
    Money Furnished by Wife to Pay Husband's Indebtedness Applied to That on Which She is Surety.
    Where the wife furnishes the husband with money to make a payment on his indebtedness to a creditor to whom he owes two debts, both being due, on one of which his wife is surety, equity will require the creditor to apply the payment to the debt on which the wife is surety, if he knew that the payment was made with money of the wife, even if the husband at the time of the payment neglected to direct the application. [Syllabus by the court.]
    Appeal from common pleas court.

      McGiffert & Gilman, for plaintiff:
    Cited and commented upon by the following authorities: Miller v. Sullivan, 39 Ohio St. 79; Gordan v. Kearney, 17 Ohio 572; Smith v. Clews, 105 N. Y. 283 [11 N." E. Rep. 632; 59 Am. Rep. 502] ; Burnham v. Holt, 14 N. H. 367; Condon v. Insurance Co., 45 Bull. 229; Potter v. Potter, 27 Ohio St. 84; 'Shulters v. Toledo, no op., 57 Ohio St. 667.

      Warren Thomas and H. E. Starkey, for defendants.

      Affirmed, no op., Orwell Banking Co. v. Pelton, 88 Ohio St. 607.

   POLLOCK, J.

The plaintiff is seeking to foreclose two mortgages given by the defendants, Hattie L. Pelton and her husband, W. H. Pelton, on the real estate described in the petition. The second mortgage was given to secure the payment of a promissory note executed by W. H. Pelton and his wife in favor of plaintiff, for $2,719. The defendant, Hattie L. Pelton, in her answer, claims a credit of $1,950.10 on this note. This credit is denied by the reply, and the issue raised between the answer and the reply is the only question submitted to this court in the trial of the case.

The facts in this case show that the plaintiff for many years past had been conducting a general banking business at Orwell in this county; that "W. H. Pelton, the husband of Hattie Ii. Pelton, for some years prior to the giving of this note had an open deposit account with plaintiff, and that from time to time prior to January 25, 1906, he had made overdrafts on the plaintiff.

These overdrafts were paid by giving to plaintiff from time to time as they occurred, the joint note of himself and wife. At the date above mentioned these notes amounted to'over $2,000, and in November of that year were all past due.

After the giving of these notes and prior to November 19/ 1906, W. H. Pelton had incurred a further overdraft with plaintiff of over $2,000. About that date the plaintiff was insisting upon W. H. Pelton reducing his indebtedness to it. Either the bank or W. H. Pelton suggested that a mortgage be made on the premises described in the petition. The title to these premises was in Hattie L. Pelton; they were her separate properties, and this fact was at that time known to plaintiff. On November 19, 1906, a loan of $2,000 was made from one Kent, Hattie L. Pelton securing this loan by a mortgage on these lands executed by herself and her husband. Kent gave Hattie L. Pelton his check, payable to herself and husband, for $1,950.10, being the proceeds of said loan after deducting the expense of securing the same.

This check was then endorsed by Hattie L. Pelton and given to her husband to be by him applied, as she intended, on his indebtedness to plaintiff, upon which she was surety. When W. H. Pelton went to the bank he made out a deposit slip of this check, and another small check of his own, handed the checks and deposit slip over the counter to the cashier of plaintiff, who gave W. H. Pelton credit on his personal account for the proceeds of these checks, and in this way applied the check of Mrs. Pelton to the payment of the overdraft of W. H. Pelton, and not on his notes upon which Hattie L. Pelton was surety. At the time plaintiff applied this cheek to the payment of the overdraft, it knew that the check represented the proceeds of a loan that Hattie L. Pelton had made by encumbering her property which she held separate and apart from her husband, for the purpose of paying on the indebtedness of her husband to the bank.

On September 12, 1908, Hattie L. Pelton and her husband' were called by plaintiff to its bank, and her indebtedness on the notes which she had signed for her husband was called to her attention, resulting in her taking up the notes upon which she was surety and giving her note for $2,719.00, secured by mortgage, which is the second mortgage set up by plaintiff in this, action. At this time no mention was -made of the application which the bank had made of the proceeds of the Kent check, and Hattie L. Pelton did not know of its application until just prior to the bringing of this action. She had not kept any account of the number or amount of the notes that she had signed for her husband, and was not aware of the amount of her indebtedness to plaintiff. Prior to this visit to the bank Hattie L. Pelton had no business relations with plaintiff, except signing the notes, as surety for her husband. Until shortly prior to the bringing of this action, Hattie L. Pelton had no knowledge of any indebtedness of her husband to plaintiff except the notes upon which she was surety.

Mr. Chamberlain, the cashier of plaintiff, and W. H. Pelton do not agree in their testimony as to the conversation that occurred at the time he was asked to reduce his indebtedness to. plaintiff or pay the overdraft. Mr. Pelton claims that he told Mr. Chamberlain that Mrs. Pelton was willing to give a mortgage on her property to raise money to secure the indebtedness to plaintiff on which she was surety, and that when he made the deposit of the Kent cheek, he told the cashier that that was the-money of Mrs. Pelton. Mr. Chamberlain denies that these statements were made to him, but is not able to state the conversation further than to say that he asked Pelton to pay his overdraft.

We have then for our consideration the question whether the plaintiff had a right to apply the proceeds of the Kent check to the payment of the indebtedness of W. H. Pelton on the overdraft, or was plaintiff required to apply it to the payment of his indebtedness upon which Mrs. Pelton was surety?

The rule, without doubt, is, that where a debtor owes two or more debts to a creditor, and they are all due, the debtor may, at the time he makes the payment, direct its application, but if' he neglects to do so, the creditor has a right to apply the payment to either debt, at his election. But there are some exceptions to this general rule, and one of them is where the money to make the payment comes from a third party, who is liable upon one of the debts and not upon the others, and the creditor knows at the time the payment is made the source from which it comes, he must apply the payment upon the debt for which the third party is liable. Crane Bros. Mfg. Co. v. Keck, 35 Neb. 683 [53 N. W. Rep. 606]; Lee v. Brewing Co. 75 Neb. 212 [106 N. W. Rep. 220]; Crossley v. Stanley, 112 Iowa 24 [83 N. W. Rep. 806; 84 Am. St. Rep. 321]; Thacker v. Lumber Co. 131 S. W. Rep. 271 (Ky.); 30 Cyc. 1237, in.

Abbott, C. J., in Thompson v. Brown, Moody & M., p. 40, says:

“The general rule certainly -is, that when money is paid generally, without any appropriation, it ought to be applied to the first item in the account; but the rule is subject to this qualification, that when they are distinct demands, one against persons in partnership and another against one only of the partners, if the money paid be the money of the partners, the creditor is not at liberty to apply it to the payment of the debts of the individual, that would be allowing the creditor to pay the debts of one person with the money of another.”

From the facts in this case we have this condition existing between the plaintiff and Mrs. Pelton at the time plaintiff applied the proceeds of the Kent check to the payment of the overdraft of her husband. ~W. H. Pelton was indebted to the plaintiff for more than $2,000 on notes upon which Mrs. Pelton was surety, and which were then past due; he was further indebted to plaintiff for more than $2,000 upon overdrafts upon which plaintiff had no security; Mrs. Pelton had no knowledge of this latter indebtness of her husband; after requesting W. H. Pelton to pay his overdrafts the bank received the check for $1,950.10 from him, knowing that it was the property of Mrs. Pelton, the surety on the notes, and applied the proceeds of the check to the payment of the overdraft, without receiving any directions as to the application of the check from either Mr. or Mrs. Pelton.

The plaintiff knew at the time the check was handed to it by W. H. Pelton that the proceeds of the check were the funds of his wife, which she had obtained by mortgaging her separate property, and it was required by good conscience and equity to give credit on the note of her husband, upon which she was obligated as surety. To do otherwise would be taking the property of one person to pay the debts of another, without the consent of the owner of the property and this cannot be done.

The plaintiff makes the further claim that even if this check was the property of Mrs. Pelton, that she had endorsed and given it to her husband, making him her agent, and if he made an unauthorized use of the cheek, the bank was not a party to the wrongful acts of the husband, and when he made out an ordinary deposit slip in his own name, and handed it to the officers of the bank without any instructions, that plaintiff had a right to treat the check as an ordinary deposit and place it to his credit, which the bank did, and in that way it reduced Ms overdraft.

The bank at this time knew that this check' was not intended as an ordinary deposit, but was intended to reduce the indebtedness of W. IT. Pelton to it. The husband could not appropriate the proceeds of his wife’s check to his own use, and if he did, and the bank received it, knowing that the check was the property of the wife, the bank could not retain the proceeds of the check against the wishes of the wife.

“The general rule is that the principal may recover his property or its value from a third person, where it has been wrongfully transferred by his agent, contrary to instructions or in excess of authority. Unauthorized payment of money made by an agent may as a rule he recovered by the principal as money had and received, and where an agent without apparent authority uses property of his principal to liquidate his own indebtedness to a third person, or otherwise disposes of it, such property or its value may ordinarily be recovered by the principal by an action of replevin or other appropriate action.” 31 Cyc. 1605.

To the same effect is Mechem, Agency Secs 778, 780 and 781.

In the case of Van Alen v. Bank, 52 N. Y. 1, it was held that:

“An agent instructed to sell his principal’s property and use the proceeds, if necessary, to protect notes on which the principal was endorser, and meanwhile deposit the. proceeds in bank to his own credit, sold the property, but substituted other money for the proceeds and deposited such substituted money to his own credit. Held, that the bank was liable to the principal on the agent’s check for the amount so deposited.”

Again, 2 Clark and Skyles, Law of Agency, page 1184:

“But while in such case the principal, in order to recover must show that the creditor knew that the agent was acting in violation of his authority, in so using the money to pay his own ■debt, knowledge that the money was held by him as agent is sufficient to establish its prima facie ease, as the legal presumption is that an agent has no authority to dispose of the property of the principal in payment of his own debt; and one therefore who receives such payment with knowledge that the money was held by his debtor as agent, does so at his peril, and to defeat a recovery must show authority in the agent to so dispose of the money.”

At the time Mrs. Pelton gave the check to her husband to apply on his indebtedness, she knew of no indebtedness of her husband to the bank, except that upon which she was bound as surety; she procured this money to apply on this indebtedness, and if her husband caused the proceeds of this check to be placed to his credit, it was an unauthorized use of the check for his own benefit, and the bank at that time having knowledge that the check was not his own, but the property of his wife, it cannot now retain her property wrongfully used, but she has a right to have the proceeds of her cheek applied to reducing the indebtedness of her husband upon which she was surety.

Under either theory of this ease we think that Mrs. Pelton should have her credit of $1,950.10 made on her note, and made as of the date at which that deposit was made in the bank. There will be a decree of foreclosure of the mortgages for the amount remaining due. If plaintiff desires to file a motion for new trial it may do so, and if filed, the motion will be overruled and proper exceptions noted thereto.

Norris and Metcalfe, JJ., concur.


text:
    POWERS — WILLS.
    [Monroe (7th) Circuit Court,
    April Term, 1912].
    Norris, Pollock & Metcalfe, JJ.

      Lewis Boltz v. Emma Elizabeth Riley, et al.
    1. Power to Dispose of Lands by Will Requires Same Formalities of Execution as Deed.
    A power to dispose of lands by will must be executed with the same formalities as are necessary in a deed directly conveying , the land.
    2. Will Creating Power to Dispose Must Contain Definite Description of Lands.
    The instrument creating the power must contain a sufficient definite identification of the lands to be disposed of.
    [Syllabus by the court.]
    Appeal from common pleas court.

      Mats & Eremer, for plaintiff:
    Cited and commented upon the following authorities: Bisham, Equity Sec. 75, p. 116; 31 Cye. 1148; Blagge v. Mills, I Story (Mass.)-426; Sudgen, Poweri 404; Gwinne v. Gwinne, II Dec. 429 (8 N. P. 307) ; Eling v.. Bordner, 65 Ohio St. 100 [61 N. E. Rep. 148] ; Broadrup v. Woodman, 27 Ohio St. 553; Malhews v. Leaman, 24 Ohio St. 615; Shehy v. Cunningham, 81 Ohio St.-289 [90 N. E. Rep. 805; 25 L. R. A. (N. S.) 1194] ; Hurd v. Bobinson, 11 Ohio St. 234; Schlief v. Hart, 29 Ohio St. 150; Morgan v. Spangler, 14 Ohio St. 102, 115; Proctor v. Snodgrass, 3 Circ. Dee. 268 (5 R. 547); affirmed, no op., Snodgrass v. Proctor, 53 Ohio St. 644; Hildebrand v. Fogle, 20 Ohio 147; Stambaugh v. Smith, 23 Ohio St. 585; Barton v. Morris, 15 Ohio 408; Ashworth v. Carleton, 12 Ohio St. 381.

      Lynch & Lynch, for defendant:
    Cited and commented upon the following authorities: Bebout v. Quick, 81 Ohio St. 196 [90 N. E. Rep. 162] ; Huston V. Cone, 24 Ohio St. 11; Hibbs v. Insurance Co. 40 Ohio St. 543; Corry v. Lamb, 45 Ohio St. 203 [12 N. E. Rep. 660]; Charch v. Charch, 57 Ohio St. 561 [49 N. E. Rep. 408] ; 31 Cyc. 1043; Clark v. Graham, 19 U. S. (6 Wheat.) 577 [5 L. Ed. 334].

      Reversed, no op., Riley v. Boltz, 90 O. S. 000; 59 Bull. 189.

   POLLOCK, J.

The plaintiff in his petition alleges that he is the owner in fee simple and in actual possession of a certain tract of land in this county, which is described therein in four tracts, containing in all 160 acres. He further says that' the defendants claim some interest or estate in said premises adverse to the rights of plaintiff, which' claim of the-defendants is unfounded, but is a cloud upon plaintiff’s title, and he asks that his title to said premises be quieted against any claims of the defendants.

To this petition, the defendant, Emma Elizabeth Riley, filed an answer, in which she claims that she is the owner in fee of the undivided one-ninth part of the first- three tracts described in the petition, containing 120 acres, and she asks that she may be protected in her rights and her title quieted to the undivided one-ninth part of these premises, and for all other relief that may be just and equitable. A reply was filed by the plaintiff denying the interest of the defendant, Emma E'lizebeth Riley, in said premises.

The facts in this case show that Mary Ann Boltz, the wife of Lewis Boltz, was a daughter of Rudolph Zesiger, and that the defendant, Emma Elizabeth Riley, is a daughter of the plaintiff and Mary Ann Boltz.

In 1868 plaintiff purchased the first three tracts described in the petition for a consideration of $3,500.00; that at the time he borrowed from Rudolph Zesiger $800.00, giving his promissory note therefor, which money was used in making the first payment on this property; that on May 18, 1871, a calculation of the interest on this note and another note for $800.00 held by Zesiger against the plaintiff was had, and the difference between the amounts due on these notes and $2,000.00 was given by Zesiger to Boltz, and the notes were surrendered to him, and then plaintiff and his wife gave to Zesiger the following written receipt and agreement:

“Received of Rudolph Zesiger, $2,000.00, with which we purchased land in the name of Lewis Boltz, which we agree is in full of our interest in the estate of said Zesiger in our individual or collective capacity, and which we agree shall be disposed of according to the last will and testament of said Rudolph Zesiger.

Witnesses: Lewis Boltz, Mark Williams, Mary A. Boltz, •Jacob Walters, May 18th, 1871.”

On September 21, 1871, Rudolph Zesiger made his will, which after his death was admitted to probate by the probate court of this county. The seventh item of said will is as follows:

“My daughter, Mary Ann, who is intermarried with one Lewis Boltz, has been by me fully paid to the amount of $2,000.00 in cash with which the said Lewis Boltz purchased a tract of land in his own name. My will is that at the death of my said daughter, Mary Ann, the lands so purchased with my said funds descend to the heirs of my said daughter, Mary Ann Boltz, according to the agreement and receipt given me by said Boltz and wife, Mary Ann. ’ ’

Prior to the bringing of this action Mary Ann Boltz had ■deceaséd, leaving nine children, of which Emma Elizabeth Riley was one.

If the defendant, Emma Elizabeth Riley, can maintain her claim to being the owner of the one-ninth interest in the premises -in dispute, it must be by virtue of the power conferred on Rudolph Zesiger by the written agreement to convey this property by will. If this paper writing, for any reason, is not sufficient for that purpose, then it follows that the subsequent ■devise by him must fail. This brings us to the question whether the power to dispose of real estate must be created by an instrument which would itself be sufficient to dispose of such property. Objection is made to this instrument for the reason that it is not acknowledged by Lewis and Mary Ann Boltz as the laws of this state require instruments to be, which are ■designed to convey the title to real estate.

Clark v. Graham, 19 U. S. (6 Wheat.) 557 [5 L. Ed. 334], first and second sections of the syllabus, announces this principle :

“1. A power to convey lands must possess the same requisites, and observé the same solemnities, as are necessary in a deed directly conveying the land.
“2. A title to land can only be acquired and lost according’ to the laws of the state in which they are situate.”

The second paragraph only affirms the rule announced by the same court in the ease of the United States v. Crosby, 11 U. S. (7 Cranch.) 114 [3 L. Ed. 287].

Justice Marshall, in the opinion in Johnson v. Yates, 39 Ky. (9 Dana) 491, 500, uses this language:

“It is a familiar principle applicable to the execution of powers, that the estate cannot pass by appointment under th& power, unless it could have been passed by the deed or instrument creating the power, and that the appointment operates as-if it had been inserted in the original deed.”

In 31 Cyc., 1043, referring to the above cases as authority,, it is said:

“A power to dispose of property must be created by am instrument which would itself be sufficient to dispose of such, property.”

Indeed it would seem to be itself evident that one cannot': confer upon another power to convey his property except by an instrument executed with all the solemnities that would be required if he himself conveyed the property. The only way that the owner can transfer the title to his real property in this state, to another, is by a written instrument executed, according to the statute providing for the execution of deeds,, or by will. No one claims that the instrument which defendant claims empowered Zesiger to dispose of this property was intended as a will, and at the time this instrument was executed, the statute of this state required, as it does now, that all deeds,, mortgages, or leases, of an estate or interest in real estate, be: signed by the grantor and acknowledged before a proper officer. The instrument conferring the power on Zesiger to will this property does not contain an acknowledgement as required by the laws of this state, and for this reason the devise by him to defendant must fail.

Again, the objection is made that the instrument contains-no description of the property which is the subject of the power. The only reference in the written memoranda to the property which should be disposed of according to the will of Zesiger is as follows: “Received of Rudolph Zesiger $2,000.00, with which we purchased land in the . name of Lewis Boltz * * * It follows that this writing does not describe any real estate, but that it will require oral testimony to supply the description of the property intended by the parties to be the subject matter of this agreement. The Supreme Court of this state has said:

“The memorandum in writing which is required by the statute of frauds (R. S. 4199; Gen. Code 8621) is a memorandum of the agreement between the parties, and it is not sufficient unless it contains the essential terms of the agreement expressed with such clearness and certainty that they may be understood from the memorandum itself, or some other writing to which it refers without the necessity of resorting to parole proof. ’ ’
“To make a valid contract to leave an estate including real property to another by will, it is not only necessary that the contract or memorandum thereof shall be in writing, signed for purpose of giving it authenticity as an agreement, but the terms of the agreement must be expressed with reasonable certainty in the writing, and it must contain a sufficient definite identification of the property to be disposed of.” Kling v. Bordner, 65 Ohio St. 86 [61 N. E. Rep. 148].

If the contract agreeing to convey one’s own property by will to another in order to be valid must contain a definite identification of the property, then certainly a contract conferring the power to dispose of another’s real estate by will must contain a like identification.

Again, in the opinion in the case of McConnell v. Brillhart, 17 Ill. 354 [65 Am. Dec. 661], the court says:

“The writings, notes or memorandum shall contain on their face, or by .reference to others that are traceable, the names of the parties,- vendor and vendee, a sufficient; clear and explicit description of the thing, interest, or property, as will be capable of identification and separation from all other of like kind. ’ ’

Applying this rule to the present ease, what do we find? The property for which the defendant claims the memorandum calls, was purchased by Lewis Boltz for $3,500.00, and the testimony shows that of the money referred to by this memorandum, only $800.00 was used in the purchase of this property. No better illustration of the wisdom of the rule that the written memorandum must contain a definite description' of the property and not be left to the uncertainty of oral testimony could be found. The same objection would prevail in permitting •oral testimony to be used to supply the material part of a written contract, that there is to permit an entire conveyance of real estate to be supplied by oral testimony, where a written one is wanting.

The writing “must contain such words as will enable the court, without danger of mistake, to declare the meaning of the parties; it must obviate the necessity of going- to oral testimony and relying on treacherous memory, as to what the contract was. Kling v. Bordner, supra.

Oral testimony may be received to apply or identify a description in a written contract, but it would be a violation of the statute- to permit it to be used to supply the description. In the written memorandum upon which the defendant relies, no description of the property is attempted. It says, “with which we purchased lands * * * * and which we agree shall be disposed of according to the last will.” This writing furnishes no description of the property which was the subject matter of the agreement, and oral testimony must be used to supply the description of the property intended.

We think for either of these reasons the defendant has failed to sustain her action.

Norris and Metcalfe, JJ., concur.


author: WINCH, J.

text:
    INTOXICATING LIQUORS.
    [Lorain (8th) Circuit Court,
    April 26, 1911.]
    Marvin, Winch and Henry, ,JJ.

      S. Susan v. O. E. Haserodt, Aud., et al.
    Addition of Penalty to Assessment for Liquor Tax cannot be Recovered against One Engaging in the Traffic without Paying Such Tax.
    The 20 per cent penalty, prescribed by Gen. Code 6082, formerly Sec. 5 of act 100 O'. L. 89, to be added to the assessment imposed by a county auditor as a tax on the liquor traffic, cannot be imposed against one engaged in such traffic without-having first paid the assessment. Notwithstanding the original act authorized such imposition no rule of construction requires: a court to read such intention into such statute as codified and. adopted by the legislature.
    [Syllabus approved by the court]
    Error to common pleas court.

      O. B. Findley, for plaintiff in error.

      F. M. Stevens, for defendant in error.

       Affirmed, no op., Haserodt v. Susan, 88 O. S. 578.

   WINCH, J.

This is an action brought by the plaintiff to recover back: the sum of $129.14 paid by him to the . county treasurer, under-protest, as a penalty on a liquor traffic tax. A jury was waived by agreement of the parties and the case was submitted to the-court, resulting in judgment for the defendants.

The facts in the case are all conceded and only a question of law is involved.

Plaintiff started in the liquor traffic on October 8, .1910,, without first having paid an assessment as provided by law. On October 21, the county auditor entered on the duplicate-against him a liquor assessment in the sum of $620.88, being the proportionate amount due under the law from October 8,. 1910 tc the end of the assessment year in May, 1911, together-with a 20 per cent penalty thereon amounting to $124.18, and a collection fee of 4 per cent on both amounts, in all $774.86. The county treasurer immediately demanded payment of this amount, and plaintiff not paying promptly, the treasurer seized and distrained plaintiff’s goods and chattels and threatened to sell the same as upon execution and apply the proceeds of such sale to the payment of said assessment.

The next day, October 22, 1910, plaintiff filed an affidavit of discontinuance of the liquor traffic, so called, which entitled him to a rebate of $420.88 for the unexpired portion of the assessment year, and to save his goods from sale, paid under protest the sum of $353.98 which includes said 20 per cent penalty amounting to $124.18, the only amount now in dispute.

He claims that there was no authority for the assessment, of a 20 per cent penalty under the law as it now stands.

That before the enactment of the General Code in February, 1910, the plaintiff would have been liable for the penalty in question there seems no question; the point is conceded.

The statutes then existing are found in Bates R. S. (6 ed.) Secs. 4364-9 to 4364-13 inclusive, originally enacted May 14, 1886, 83. O. L. 157. That law had several sections, the first providing for a tax on the liquor business; the second that the tax shall be a lien and fixing the time for its payment; the third providing for the refunding of part of the tax, if the business is discontinued; the fourth, collection of tax in case of nonpayment and the fifth providing for assessors’ returns and certain penalties. The concluding sentence of this section reads as follows:

And if any assessment aforesaid shall not be paid when due, there shall be added a penalty thereto of 20 per centum, which shall be collected therewith.

Manifestly the word “aforesaid” referred to any assessment provided for in the fifth or any preceding section of the act and it was so held in the case of Simpson v. Serviss, 2 Circ Dec. 246 (3 R. 433).

The code commission chopped up these sections into smaller parts and we now find said Sec. 5 of the original act in Gen. Code 6081 and 6082. Gen. Code 6081 provides that each assessor shall return to the county auditor a statement as to each place within his jurisdiction where the liquor business is conducted, showing the name of the person, corporation or co-partnership engaged therein, signed and verified before the assessor by such person, etc.

Gen. Code 6082 reads:

“If such person, corporation or copartnership, on demand, refuses or fails to furnish the requisite information for the statement, or to sign or verify it, such fact shall - be returned by the assessor, and thereupon the assessment on said business jhall be fifteen hundred dollars. If such assessment is not paid when due, there shall be added a penalty thereto of twenty per cent which shall be collected therewith. ’ ’

The treasurer claims his 20 per cent penalty under the last sentence of this section. There is no other section authorizing it. He claims that although this sentence, by the use of the words “such assessment” clearly indicated the assessment of $1500 in case the trafficker refuses or fails to furnish the requisite information for the assessor’s statement, still it must be construed to read, “any assessment in this chapter mentioned,” or “any assessment aforesaid” as in the original law.

That such cannot be the construction to be put upon the law appears from the fact that in Gen. Code 6076, preceding, a penalty of 50 per cent is provided in case a railroad company fails to pay assessments on its liquor traffic in buffet or dining cars.

Whether the legislature intentionally or unintentionally changed the law as to penalties in cases like the one here before us when it enacted the General Code, is immaterial. All laws assessing taxes and assessments are to be strictly construed, and here is a law not only assessing a tax, but providing a penalty for failure to pay it on a specified day, to wit, the day when the trafficker starts his business — if after the beginning of the assessment year.

Construing this statute, not strictly, in a sense, but literally, according to the ordinary meaning of the words used, the plaintiff was not liable to a penalty on his assessment.

We do not feel required to read into this statute some other meaning than its language intends. If the legislature has made a mistake in enacting it, and did not intend the consequences necessarily following from the change in wording of the law on this subject, it can easily remedy its mistake and correct the law. Until it does so, we hold that the 20 per cent penalty cannot be assessed in a case of this kind.

Judgment reversed, and the facts of the case being conceded, judgment is rendered for plaintiff in error.

Marvin and Henry, JJ., concur.


author: SHIELDS, J.

text:
    INTOXICATING LIQUORS.
    [Stark (5th) Appeals Court,
    February Term, 1913.]
    Voorbees, Shields and Powell, JJ.
    David Harris v. State of Ohio.
    1. Evidence of Circumstances not Competent to Fortify Direct Testimony of Absence of Proprietor from Saloon at Time of Furnishing.
    In a prosecution against the proprietor of a saloon for furnishing intoxicating liquors to a minor in which it appears that the bar tender had been instructed at the time of his employment not to sell to minors, unqualified and unequivocal proof of the absence of the proprietor at the time of such furnishing having been given in direct examination of the bar tender in' defense of accused, the narration of any independent circumstance to fortify his own statement is improper in direct examination and properly excluded.
    2. Whether Proprietor or Bar Tender of Saloon Furnished Liquors to Minors is Immaterial.
    An instruction, in a prosecution for furnishing intoxicating liquors to a minor, that if the liquors were not furnished by the proprietor, but by the bar tender unless the proprietor consented to such furnishing by the bar tender then no conviction could be had and the burden is on the state to show that the furnishing was consented to by the state, is properly refused when the court charges generally that it is immaterial whether the furnishing was by the proprietor or the bar tender, unless it appears that such liquors were furnished without the authority and against the instructions of the proprietor given to the agent in good faith, and also, that the burden of proving defendant guilty is upon the state.
    [Syllabus approved by the court.]
    Error to common pleas court.

      J. W. Craine, for plaintiff in error:
    Burden on state to establish authority of proprietor to bartender to sell to minor. Parker v. State, 4 Ohio St. 563, 565; Groenland v. State, 6 Dec. 313 (4 N. P. 122); Commonwealth v. Stevenson, 142 Mass. 466 [8 N. E. Rep. 341] ; Commonwealth v. Briant, 142 Mass. 463 [8 N. E. Rep. 338; 56 Am, Rep. 707] ; Minnesota v. Mahoney., 23 Minn. 181; Thompson v. State, 45 Ind. 495; O’Leary v. State, 44 Ind. 91; People v. Parks, 49 Mich. 333; Commonwealth v. Putnam, 70 Mass. (4 Gray) 16; Commonwealth v. Dunbar, 75 Mass. (9 Gray) 298.

      Presumption of innocence. Jones, Evidence (2 ed.) Sec, 101, 102.
    ■Instruction before argument on burden of proof. McGuire v. State, 2 Circ. Dec. 318 (3 B. 551) ; McHugh v. Slate, 42 Ohio St. 154; Monroeville v. Boot, 54 Ohio St. 523 [44 N„ E. Bep. 237] ; Commonwealth v. Houle, 147 Mass. 380 [17 N. E. Bep. 896] ; Wood v. State, 30 O. C. C. 255 (10 N. S. 371) ; Kilbourne v. State, 84 Ohio St. 247 [95 N. E. Bep. 824; 35 L. B. A. (N. S.) 766] ; Anderson v. State., 22 Ohio St. 305.

      H. C. Pontius and Frank N. Siueitzer, for defendant in error.
   SHIELDS, J.

David Harris, the plaintiff in error, was indicted at the January term, 1910, by the grand jury of this county for furnishing intoxicating liquors to one Florence Bonsky, a minor, to be drank by her and not being given by a physician in the regular line of his practice, to which indictment a plea of not guilty was entered. Trial was had resulting in a verdict of guilty. A motion for a new trial was filed which was overruled, thereupon the trial court sentenced the said David Harris to be “confined in the Stark county workhouse at Canton, Ohio, for the period of ten days and until discharged by due process of law, and that he pay a fine of $25 and the costs of prosecution, and that he stand committed until said fine and costs are paid,” to all of which defendant then duly*excepted.

Thereafter the said David Harris caused a bill of exceptions to be taken embodying all the evidence taken upon the trial of said case, including the charge of the trial court, and now prosecutes error in this court by the filing of a petition in error to reverse said judgment of said court of common pleas Numerous grounds of error are assigned in said petition in error for such reversal but the errors principally relied on and urged upon this court are as follows:

First. 'That the said court below erred in sentencing said defendant to said workhouse and to pay said fine and costs, and to stand committed until said fine and costs were paid.

Second. Said court erred in refusing the alleged instruclions given by the plaintiff in error to his bartender in respect to selling liquors to minors.

Third. Said court erred in excluding evidence offered by the plaintiff in error upon the trial.

Fourth. Said court erred in refusing to give to the jury before argument a certain written request requested by the plaintiff in error.

Both counsel for plaintiff in error and counsel for the ■state agree that the court below pronounced a sentence upon the plaintiff in error that was both unauthorized and erroneous, and the first exception taken will therefore be sustained.

As to the second exception, an examination of the record shows by a reference had to page 45 therein that Frank Margo, a bartender and a witness for the defendant below, was asked whether or not the said defendant gave him any instructions while in his employ prior to January 10, 1910, as to selling or furnishing liquors to minors, wrhich question was objected to, and the record shows that no action of the court was taken thereon. Again on page 69 of the record said witness was recalled and was asked the following question:

Q. I want to ask you whether prior to January 10, 1910, the defendant, David Harris, gave you any instruction on the subject of furnishing intoxicating liquors to minors? (State •objects. Objection overruled. State excepts.)

A. Yes, sir.

Q. Do you remember when it was that he gave you such instructions ?

A. Yes, sir, when I started to work.

Q. When was that?

A. In November.

Q. Of the year before?

A. Yes, sir.

Q. What did he say to you on the subject?

A. He said I should be careful not to sell to minors.

It appears, therefore, that evidence relating to the alleged instructions of the plaintiff in error to the bartender Margo on the subject of furnishing intoxicating liquors to minors was allowed to be given and was given to the jury and that this question is not made upon the record.

Exception is taken to the action of the court below in excluding evidence offered by the plaintiff in error during the trial of said cause, upon objection by the defendant in error, on the subject of the absence of the plaintiff in error from his place of business Wednesday evening, January 5, 1910. After testifying that the plaintiff in error left his place of business about 5 o’clock on said evening, and that he did not return until midnight, the witness, Frank Margo, was asked the following question:

Q. Do you have any particular reason for knowing that he was away on. Wednesday night? (State objects. Objection sustained.)

Q. Is there anything that you know of which directs your attention particularly to the fact that Mr. Harris was away on Wednesday evening, January 5, 1910? (State objects. Objection sustained. Defendant excepts.)

Margo was a witness for the defendant below and when he stated unqualifiedly and unequivocally on direct examination that the plaintiff in error was absent from his place of business on the evening in question, was it the privilege and legal right of the plaintiff in error to have said witness fortify his statement in this respect by the narration of any independent circumstance? We think not, and we further think that the witness could only avail himself of this privilege if his recollection was being tested on cross-examination. We, therefore, hold that this exception affords no ground of prejudicial error.

Exception is also taken to the refusal of the court to charge request No. 2, on behalf of the defendant below, before argument, which said request was renewed by the defendant below at the conclusion of the opening argument on behalf of the state, and which request is as follows:

“If you find from the evidence that said intoxicating liquors were not furnished by the defendant in person to said Florence Bonsky, but were furnished by a bartender of the defendant, then your verdict should be for the defendant, unless you find from the evidence beyond the existence of a reasonable doubt that the defendant consented to said furnishing by said bartender, and had authorized said bartender to fur-nish intoxicating liquors to minors, and the burden of establishing such consent or authority is upon the state.”

But said court did charge the jury on said subject as follows :

“I will say to you this, gentlemen, as a matter of law, that if you find in this ease beyond the existence of a reasonable doubt that the defendant furnished to Florence Bonsky the intoxicating liquors as is averred in the indictment, and the other averments of the indictment by the same degree of proof then it is immaterial whether he furnished that liquor directly or indirectly; I mean by that whether he furnished it himself or whether he furnished it by his bartender, if you find beyond the existence of a reasonable doubt that the bartender did furnish it and furnished it with his authority. While this is the law, gentlemen, I desire to say to you further, that if you find from the evidence in the ease that the liquor was furnished without his authority and against his instructions given in good faith, that he could not be convicted of the offense with which he stands charged in the indictment.”

The request made, in our judgment, is broader in its terms in relation to the alleged instructions of the plaintiff in error to his bartender than is recognized by the Supreme Court of this state and in the case of Anderson v. State, 22 Ohio St. 305, wherein it is held that:

“The directions to the agent forbidding the sale must be in good faith, for, however notorious or formal they may be, they can have no effect, if they are merely colorable.”

In the case at bar the court below gave this instruction in substance, and in refusing to give said request submitted by the plaintiff in error, we think the said court in this respect committed no error. But it is further contended by the plaintiff in error that said court erred not only in charging the jury upon the subject of ■ instructions given to his bartender, but in refusing to charge the jury that the burden of establishing ■¡the consent or authority given to such bartender rests upon the state as stated in said request so made. In all criminal prosecutions the burden of proof rests upon the state to prove each and every material ingredient of the offense charged by that degree of proof required by law in such prosecutions, and it is made the duty of courts under the law to so instruct juries. How was it here? It is true that the trial court did not so expressly instruct the jury in connection with its instruction upon the subject of the alleged directions of the plaintiff in error to his bartender in reference to selling -intoxicating liquors to minors, but on page 78 of the record it appears that said court charged the jury as follows:

“Thet burden of proving the defendant guilty of the offense with which he stands charged by proof beyond the existence of a reasonable doubt is placed by the law upon the state, and the state must so prove the defendant guilty before it can ask a conviction of the defendant at your hands of the offense with which he stands charged in the indictment. The defendant is presumed, as every defendant in a criminal case is, to be innocent or not guilty of the offense with which he stands charged, and that presumption continues throughout the entire ease until the state has removed it by proof beyond the existence of a reasonable doubt.”

Here is a clear and explicit instruction, clearly stated, to the jury upon the subject in question. True it was not a part of said request, nor was it necessary that it should be unless said request as a whole contained sound propositions of law; nor was said court called upon to repeat said instruction. For the reasons stated we hold that this exception is not well taken.

We have examined the record with reference to the other assignments of error in said petition, especially with reference to the ground of error alleged that the verdict of the jury is not sustained by sufficient evidence, and is contrary to law. While the record shows that the witnesses differ in their testimony both as to the date when the liquor was furnished, and the identity of the person furnishing it, these were facts for the jury to determine, and having determined them, we cannot say as a reviewing court upon an examination of the entire record that the verdict of the jury is not sustained by the weight of the evidence or that the judgment below is contrary to law.

The judgment of the court of common pleas will be reversed and it is ordered that said case be remanded to said court for resentence of the plaintiff in error according to law, arid in all other respects said judgment will be affirmed.

Voorhees and Powell, JJ., concur.


text:
    BILLS AND NOTES — EVIDENCE.
    [Cuyahoga (8th) Court of Appeals,
    March 3, 1913.]
    Grant, Winch and Meals, JJ.
    J. M. Shive v. E. E. Merville.
    Evidence of Contemporaneous Parol Agreement of Conditional Delivery of Promissory Note Admissible.
    A defense to an action between original parties on a promissory note, that it was delivered to payee on condition that it should be paid if certain stock purchased by lien should prove assessable and, if nonassessable, should be returned to the maker, comes within the provisions of Gen. Code 8121, prescribing that delivery may be shown to be conditional, etc.; hence, the stock proving to be nonassessable, evidence of such parol agreement made contemporaneously with the execution of the note is admissible, not being an effort to vary the terms of a written instrument.
    Error to common pleas court.

      E. J. Finney, for plaintiff in error.

      Guthery & Guthery, for defendant in error.
   WINCH, J.

Merville sued Shive on a promissory note. Shive answered, admitted the execution and delivery of the note but alleged that it was delivered to Merville upon condition that it should be paid if certain' stock the latter had purchased through Shive should prove assessable and should be returned to Shive if the stock proved nonassessable; that the stock turned out nonassessable, Shive demanded the return of his note, which was refused, and he therefore asked for the cancellation of the note.

On the trial the plaintiff, Shive, objected to the introduction of any evidence by the defendant Merville, under the allegations of his answer, on the ground that it was an effort to vary the terms of a written agreement by parol evidence. This objection was sustained, and the jury instructed to bring in a verdict for the plaintiff:

This action of the trial judge is here alleged as error.

It was held in the case of Cummings v. Neff, 44 Ohio St. 92 [4 N. E. Rep. 710; 58 Am. St. Rep. 796], and again in Beecher v. Dunlap, 52 Ohio St. 64 [38 N. E. Rep. 795], that evidence of a parol agreement prior to or contemporaneous with the drawing and delivery of a bill of exchange, that the drawer is. not to be liable as such, is inadmissible.

' On the other hand, in other jurisdictions it has been held, as in,.the case of Burke v. Dulaney, 153 U. S. 228 [14 Sup. Ct. Rep. 816; 38 L. Ed. 698]: “In an action by the payee of a negotiable note against the maker, evidence is admissible to show a parol agreement between the parties,, made at the time of the making of the note, that it should not become operative as a note until the maker could examine the property for which re was to be given, and determine whether he would purchase it. ’ *

' Justice Harlan, in the opinion in this case, remarks that the evidence offered and excluded “did not in any true sense contradict the terms of the writing in suit, nor vary their legal import, but tended to show that the written instrument was never, in fact, delivered as a present contract, unconditionally binding upon the obligor according to its terms from the time of such delivery, but it was left in the hands of Dulaney (the payee) to become an absolute obligation of the maker in the event of his electing, upon examination or investigation, to take the stipulated interest in the property in question.”

So here, the allegations of the answer amount to the same thing, that the note was delivered conditionally, to' become an absolute obligation only in the event the stock mentioned was found to be assessable.

Whatever conflict on this subject existed in the decisions of the various states, the Negotiable Instruments act, so called, enacted by most of the states, adopts the rule of the federal court, cited.

The part of that act applicable here is- now found in Gen. Code 8121, and provides that “the delivery, in order to be effectual, must be made either by or under the authority of the party making, drawing, accepting or endorsing, as the case may be. In such case, the delivery may be shown to have been conditional, or for a special purpose only, and not for the purpose of transferring the property in the instrument.”

The answer tendered in this ease came within the provisions of said section, and the evidence offered by defendant below, tending to establish the allegations of his answer, should have been received and submitted to the jury, under a proper charge.

See Starr Piano Co. v. Edgar, 31 O. C. C. 295 (12 N. S. 37).

For error in excluding evidence under the answer and directing a verdict for the defendant, the judgment is reversed.

Grant and Meals, JJ., concur.


text:
    DIVORCE AND ALIMONY.
    [Wayne (5th) Court of Appeals,
    February Term, 1913.]
    Voorhees, Shields and Marriott, XT.
    Amos Knestrick v. Lids Knestrick.
    Reasonable Alimony Considering Financial Ability of Husband and Pecuniary Needs of Wife, Insane when Divorced, Allowed.
    A decree of divorce granted a husband upon the ground of impotency of his wife, after they had lived together in cordial and affectionate relation for sixteen years and after she had become insane, cannot be said to be based upon the wife’s aggression or fault, and does not-absolve him from liability to support her; hence, reasonable alimony should be allowed, based upon the husband’s financial condition and ability to support ber, and her pecuniary needs, such as will save her from becoming a charge on the charity of her frierids, relatives or the state.
    Appeal from common pleas court.

      Wieser & Boss, for plaintiff.

      Frank Taggart, for defendant.
   SHIELDS, J.

This was an action in the court of common pleas of this county brought by the plaintiff against the defendant for divorce. The' defendant, an insane person, through her guardian, filed an answer and cross petition claiming alimony. A divorce was granted by said court to the plaintiff and the action was appealed to this court upon the allowance of alimony, and the same was heard upon evidence.

It appears that these parties were married in October 1879 and lived together .as husband and wife until July 1895, when the defendant became insane and was so adjudged by the probate court of this county. That no children were born of such marriage. That in July 1906, Dr. A. L. Hoisington, a brother of the defendant, was appointed guardian of her person and estate. That in September 1909 the defendant left the home of the plaintiff in Wooster, Ohio, and went to the home of said guardian in Fremont, Ohio, where she' remained, and the plaintiff continued to reside in Wooster. That after the defendant was adjudged insane, she was committed to the Massillon State ■Hospital from which she was released, upon the application of the plaintiff, who afterward placed her in a private hospital, and failing to show improvement in her mental condition, she was again committed to the Massillon State Hospital where she remained some time, and later on returned to live with her husband where she remained until she went to Fremont, as stated. That the plaintiff is now and Tor several years past has been a practicing physician in Wooster. That in 1906 he made an assignment for the benefit of his creditors, and shortly afterward paid his creditors in full. That at that time, under said assignment, the defendant’s contingent right of dower in the plaintiff’s property was fixed at $628.45, which was paid to her guardian. That the defendant then owned and now owns the one undivided half interest in seventy acres of land in Wayne county, Ohio, valued by different witnesses at figures ranging from $50 to $85 per acre, from which real estate she receives an annual income of $100., which said sum before 1906 was paid to her husband, and after that time to her guardian. That the plaintiff’s income from said practice averages at least $10 per day, less expenses, and that he possesses property valued at about $3800.

In his petition filed for a divorce the plaintiff says that prior to the time the defendant became insane “she was impotent and guilty of gross neglect of .duty toward this plaintiff in that she refused to copulate and cohabit with him and neglected other duties.” The guardian of the wife by answer denies the material allegations in said petition, and in a cross petition charges the plaintiff with gross neglect of duty in failing to provide his wife with the necessities of life and that she has been so supplied by the charity and kindness of her friends, and that her separation from the plaintiff was caused by the plaintiff’s ill treatment of her, to which said cross petition the plaintiff filed a reply in the nature of a general denial.

The appeal here is upon the allowance of alimony made by the court below. The rule laid down in the case of Cox v. Cox, 19 Ohio St. 502 [2 Am. Rep. 415], has invariably been recognized and adhered to by this court in cases of this kind in reopening for trial all the issues of fact upon which the rights of the parties in respect to alimony depend. Ordinarily the husband is not called upon to support his wife when she abandons him and his home and voluntarily.goes elsewhere to live, especially if the home so offered her is a reasonable one under the circumstances. This leads us to inquire of the circumstances under which the defendant is alleged to have left the plaintiff’s home. The evidence upon the part of the plaintiff tends to show that he was provided with a comfortable home, reasonably well furnished, that he eared for and supplied the defendant with clothing and other necessaries of life, and that the relations between the parties, at least, up until July 1895, were most cordial and even affectionate. The plaintiff himself testified that up to said date “she was helpful about the house and was a wife to me.” He further testified that after said date he continued to treat and provide for her properly, and so continued until about the-day of September, 1909, when Mrs. Hoisington, the wife of the defendant’s said guardian, while visiting at the plaintiff’s home, and while he was absent and without his knowledge, persuaded the defendant to pack her clothing and • personal effects and store the most of them with a neighbor, and go to her home in Fremont with her, and where, as before stated, she has remained. Having left the home under these circumstances, the plaintiff testified that since said time he has made no effort to have his wife return to him, that he has not visited her, that he has not seen her, that he hás not written to her nor to said guardian or other person in Fremont about her, nor has he contributed or offered to contribute anything to her support, except the sum of $50 allowed by this court at its former term as alimony pending the suit. Opposed to this is the testimony of Mrs. Hoisington who testified that the defendant frequently visited her and her husband in their home in Fremont prior to September, 1909, that she remained there with them weeks and even months at a time, and that the plaintiff at least during some of such visits also visited them while the defendant was visiting them. She further testified that prior to the-day of September, 1909, when the defendant left her home in Wooster, she had arranged with the plaintiff that she (the witness) was to visit at the plaintiff’s home and that the defendant was to return to her home in Fremont with her, and that in pursuance of such arrangement she visited . the plaintiff at his home and the defendant returned to Fremont with her. That the plaintiff had full knowledge of the defendant leaving his home, and assented thereto, and that he was at his home when she so left. She further testified that she found the defendant lodging, alone, in one of the back rooms in the plaintiff’s house, upstairs, that she had no shoes and was otherwise wanting in ■wearing apparel. Upon calling the attention of the plaintiff to this condition, the witness testified that the plaintiff answered * ‘ that if any purchases were to be made for her they would have to be made out of moneys coming from her own property. ’ ’ That on other occasions when visiting at the plaintiff’s house she testified she observed the defendant’s necessitous condition and that she (the witness) had supplied her with clothing. Said witness also testified that the defendant is a great charge to her family, requiring her meals to be carried to her in her room apd requiring also other special and personal services which one in her frail and mental condition craves. The guardian also testified that when he last visited the plaintiff, the defendant was occupying a back room alone, upstairs, in the plaintiff’s house, and when she last came to his house the defendant was poorly clothed. He also testified to the nature and extent of services necessary to her proper care, that she is in poor health and that her condition frequently requires medical attention, adding that “if she was well mentally, she could not maintain herself.” The plain- . tiff denied that the defendant was not properly cared for in his house, and he also denied that he did not furnish her all needful clothing, and he says the defendant refused to wear some of the clothing he did furnish because of her refusal to see people who called at his house and because of her aversion to dress.

It will thus be seen that the evidence is conflicting as to the circumstances under which the defendant left the plaintiff’s home, but it may well be said that whatever the circumstances, they are immaterial in the face of the admitted fact that the defendant was then an insane woman. With her reason lost, she was no longer a responsible agent. In her conduct, she was not accountable to the civil law or to the laws of society. True, the decree of divorce seems to have been granted on the ground of her impoteney — a strange charge to be made by the plaintiff after these parties had been married and presumably cohabited together for some sixteen years, and after she had been adjudged insane — an issue with which this court has nothing to do, but the fact that a divorce was granted does not absolve the husband from liability to support his wife. The cause, if there was a cause, was not of the wife’s aggression or sinning, for her reason was dethroned by a power over which she had no control. The charity of the law does not refuse its benefits to one so afflicted, much less punish the victim. The saeredness of the family relation supplemented with the husband’s obligation, under the circumstances here shown, unite in emphasizing this defendant’s claim to consideration upon the court, and while the plaintiff’s financial condition is not to be ignored but considered on the one hand, the helpless and stricken condition of the defendant is not to be lost sight of on the other. The plaintiff is fifty-nine years of age, apparently in good health, 'possessed of a practice in medicine yielding him an average income of $10 per day, less expenses, has about $3800 worth of property and has at least a fair earning capacity in his profession. The defendant is fifty-four years of age and is possessed in her own right of her inchoate right of dower and her interest in certain real estate as hereinbefore stated. Such reasonable allowance of alimony should be made the defendant in view of the financial condition of the husband as will save her from becoming a charge on the charity of friends, or relatives, or the state. This view we think is sanctioned both by good morals and by the practice of our courts. Upon the subject of granting alimony the distinguished judge announcing the opinion in Fickle v. Granger, 83 Ohio St. 106, says:

“Alimony is an allowance for support, which is made upon considerations of equity and public policy. It is not property of the wife recoverable as debt, damages or penalty. It is based upon the obligation, growing out of the marriage relation, that the husband must support his wife, an obligation which .continues even after a legal separation without her fault.”

Considering that the plaintiff has not paid anything toward the support of the defendant since September, 1909, except the alimony allowed her pendente lite, hereinbefore referred to, we are of the opinion that the defendant should have and it is hereby decreed that she have as alimony to this date the sum of $500 payable as follows, to wit: $250 on or before March 1, 1913, and $250 on or before April 1, 1913, and the further sum of $400 per year hereafter, commencing April 1, 1913, payable quarterly, that is to say, $100 every three months from April 1, 1913, such payments to continue until the further order of this court.

It is further ordered that the plaintiff pay the costs of this proceeding. Exceptions noted.

Voorhees and Marriott, JJ., concur.


text:
    PLEADING — WILLS.
    [Hamilton (1st) Circuit Court,
    January, 1911.]
    Giffen, Smith and Swing, JJ.
    Bantz v. Rover et al.
    1. Amendment Proper Procedure to Cure Verification Omitted.

      Failure to properly verify an answer and cross petition in an action for construction of a will and an accounting by a guardian should be cured by amendment pursuant to R. S. 5114 (Gen. Code 11363); hence, the dismissal of such a pleading because not properly verified constitutes reversible error.
    2. Guardian Cannot Sue to Construe Will.

      Guardian, having no trust under a will to administer, cannot maintain an action to construe the will and for an accounting.
    [Syllabus approved by the court.]
    Error to common pleas court.

      W. M. Tugman, for plaintiff in error:
    Cited and commented upon by the following authorities: 1 Bates, Pleading p. 162; Cincinnati, H. & D. By. v. Bailey, 70 Ohio St. 88 [70 N. E. Rep. 900] ; Conn v. Rhodes, 26 Ohio St. 644; Venneman v. Sievering, 9 Dec. Re. 459 (14 Bull. 5); Ashly v. Wright, 19 Ohio St. 291; First Nat. Bank v. Reed, 31 Ohio St. 435; Boyles v.- Eoyt, 2 Dee. Re. 376 (2 W. L. M. 548); Phillips v. LeJune, 25 O. C. C. 107 (1 N. S. 616) ; White v. Freese, 13 Dee. Re. 749 (2 C. S. C. 30) ; Bragg v. Bickford, 4 How. Pr. (N. Y.) 21; Meade v. Thorne, 2 Dec. Re. 289 (2 W.L. M. 312) ; Kerns v. Roberts, 2 Dee. Re. 537 (3 "W. L. M. 604); Wheeler v. Wales, 3 Bush (Ky.) 235; Steinman v. Steinman, 27 O. C. C. 460 (5 N. S. 600); Einde v. Whitney, 31 Ohio St. 53; Linton v. Laycock, 33 Ohio St. 128; Penn v. Eayward, 14 Ohio St. 306.

      Chas. M. Cist, for defendant in error.
   SWING, J.

We think it was error in the court to dismiss the answer and cross petition of Adam Bantz on the ground that the “answer and cross petition is not verified by the signature of the attorney and does not show the name or seal of the notary public before whom it purports to have been signed by' Adam Bantz.” Under R. S. 5114 (Gen. Code 11863) the court should have permitted the pleading to have been amended. Cincinnati, H. & D. Ry. v. Bailey, 70 Ohio St. 88 [70 N. E. Rep. 900].

We are further of the opinion that the court should have sustained the demurrer to the original petition. But as no error is prosecuted to this judgment, this court can take no action in regard(to it.

The original action was evidently brought under R. S. 6202 (Gen. Code 10857), and asked for the construction of the will of Herman Rudolph Rover and for an accounting. Adam Bantz, as guardian of Hedwig Bantz, was not entitled to bring such an action; He had no, trust to administer under said will and therefore could not maintain such an action. Collins v. Collins, 19 Ohio St. 468; Corry v. Fleming, 29 Ohio St. 147. But in an action for partition and for an accounting between the parties the will could be construed and the rights of all the parties could be adjusted. Lasure v. State, 19 Ohio St. 51; Linton v. Laycock, 33 Ohio St. 128; Patton v. Patton, 39 Ohio St. 590.

Judgment reversed and cause remanded for further proceedings.

Qiffen and Smith, JJ., concur.


author: DUSTIN, J.

text:
    ABORTION — CRIMINAL LAW.
    [Franklin (2nd) Court of Appeals,
    February 4, 1913.]
    Dustin, Allread and Ferneding, JJ.
    J. W. Tippie v. State of Ohio.
    1. Offense of Causing Miscarriage not Stated by Averring Administration of Chloroform.
    The crime of causing a miscarriage of a pregnant woman resulting in her death is not charged in an indictment which goes no further than to allege that chloroform was administered to her with intent to procure a miscarriage, but while she was under its influence the patient died.
    2. Removal of Dead Foetus not Criminal.
    The removal of a dead foetus is not producing a miscarriage within the contemplation of Gen. Code 12412; hence, one accused of causing the death of a woman through an attempted miscarriage is entitled to an instruction to the jury to the effect that if he honestly believed from his examination of the patient that there was a dead foetus in her uterus, and administered chloroform to her as an anaesthetic with the intention of removing said foetus, and she died from the effects of the chloroform before an operation had been attempted, he should be found not guilty.
    3. Honest Belief of Presence of Dead Foetus as Basis of Operation to Remove Need not be Justified by Reasonable Grounds for Such Belief.
    An instruction in a prosecution for miscarriage as to removal of a dead foetus not being criminal is not erroneous because of failure to provide that the honest belief of the- accused must have been based on reasonable grounds, since if there should be a finding that the intent of the accused was not to destroy foetal life but to relieve the patient of a foetus already dead, there would be a failure on the part of the state to prove intent, and the accused would be entitled to an acquittal.
    4. Evidence of Husband that Physician was Employed to Cause Miscarriage not Sufficient to Reverse Verdict for Accused.
    The testimony of the husband of the deceased that he arranged with the accused for the procurement of -a miscarriage, does not, where contradicted in essential particulars, outweigh the presumption of innocence, a good reputation and a plausible connected story to such an extent as to warrant a verdict of guilty beyond a reasonable doubt.
    Error to common pleas court.

      F. L. Owen, for plaintiff in error.

      E. C. Turner and' W. E. King, for defendant in error.
   DUSTIN, J.

General Code 12412, provides:

“Whoever, with intent to procure the miscarriage of a woman, prescribes or administers to her a medicine, drug or substance, or with like intent, uses an instrument or other means, unless such miscarriage is necessary to preserve her life, or is advised by two physicians to be necessary for that purpose, if the woman either miscarries or dies in consequence thereof, shall be imprisoned,” etc.

Under this section J. W. Tippie, a physician, was indicted as follows:

“J. W. Tippie * * * on or about the second day of August, in the year of our Lord one thousand nine hundred and twelve * * * unlawfully, wilfully and knowingly did administer and caused to be taken by one Nettie Engler, the said Nettie Engler being then and there pregnant with child, a certain quantity of a certain poisonous drug, to wit, about a dram of chloroform, which said chloroform was then and there administered to the said Nettie Engler by said J. W. Tippie, with the intent then and there to procure the miscarriage of the said Nettie Engler; said miscarriage not being then and there necessary to preserve the life of the said Nettie Engler and then and there not having been advised by two physicians to be necessary for said purpose. In consequence of the taking of .said poisonous drug, to wit, chloroform so administered to the-said Nettie Engler by the said J. W. Tippie at the time and with the intent aforesaid, the said Nettie Engler then and there on the second day of August, A. D. 1912, at the said eounty of Franklin died.”

On trial Tippie was convicted and sentenced to one year in the penitentiary.

Error in the proceedings is claimed:

First. Because the indictment does not state a crime, in that it charges that a miscarriage was produced by chloroform, ■whereas it is impossible to produce a miscarriage by the use of that, drug alone.

In answer to this, it is contended by the state that the use of chloroform was one of the preliminary acts of the crime, which was to be followed by the use of instruments, and the use of the drug, therefore, in furthering the intent .to produce a miscarriage, made it a criminal act, under the section quoted.

The court can not take notice that chloroform will not produce a miscarriage, it being a scientific fact not sufficiently well known to come within the. purview of judicial knowledge. But on the trial it was clearly shown by the uncontradicted testimony of medical witnesses.

Tt then became a legal question, for the court to decide, whether under the evidence there had been a failure of proof.

The indictment charges the use of only one means, and, coneededly, that was insufficient of itself. "Was it incumbent, therefore, upon the court to direct a verdict of acquittal! The common pleas court held with the state that the crime was made out, if the use of chloroform was one of the means contemplated in the criminal intent, and that means proved fatal to the patient, although it did not produce and could not produce a miscarriage.

There was evidence tending to show that the chloroform was used to produce anesthesia, and, while the patient was in that state, instruments were to be used to effect a miscarriage. But, was that the crime charged in the indictment! "We think not.

The Supreme Court has recently indicated its adherence to the well established rules of criminal law that require the crime charged to be accurately described in the indictment. In Coblentz v State, 84 Ohio St. 235 [95 N. E. Rep. 235], it was held that an indictment “must aver all of the material facts necessary to be proven in order to convict, with such reasonable certainty as to advise the defendant what he may be expected to meet at the trial. ” :

The indictment makes no allusion to instruments nor the use of them. The defendant went to trial relying upon his ability to show that chloroform could not produce a miscarriage, as charged in the indictment, and then evidence was permitted on behalf of the state that he intended to follow up the chloroform by the use of instruments.

We think that was prejudicial error.

The case of Tabler v. State, 34 Ohio St. 127, is cited as sustaining the view of the trial judge. But we think that case-may be fairly distinguished from the one at bar.

In the- Tabler case there were two counts in the indictment,, one charging -the use of a drug, and the other the use. of an instrument, to destroy the foetus. The verdict was general, finding defendant guilty on both counts, and it was argued by his counsel that that involved a contradition, and that it was error for the court to refuse to charge that a finding that the crime was the combined result of the two means would require an acquittal.

The court held that there was no error.

It does not appear from the report of the case what the drug was that was alleged to have been used; but the argument and the opinion are based upon the view that either the drug or the instrument might have been effective; and that the use di both would simply hasten the fatal result. Hence, a finding of a combined effect was not repugnant to a verdict on both counts,

In the indictment under consideration, no instrument is alluded to, and the drug that is alleged to hav« been used is harmless so far as producing a miscarriage is concerned.

If this verdict is allowed to stand, the records of the court will show that a man was convicted of producing a miscarriage by the sole use of a drug that is conceded by scientific and medical experts as incapable of such an effect.

Second. Again, it is claimed that the court erred in refusing to give, before argument, instruction No. 5 asked by defendant, as follows:

“If the defendant honestly believed from his examination of Nettie Engler that there was a dead foetus in- the uterus, and that chloroform was administered as an anaesthetic, so that he could remove the foetus without pain to the patient, and she died from the effects of tbe chloroform, he would not be guilty, even though be was mistaken in bis judgment, and your verdict should be not guilty. ’ ’

This charge stated briefly tbe whole defense; and, we think, should have been given.

The court, it is asserted, was of the opinion that the instruction and the defense lacked the important element, in the language of the statute, that the miscarriage contemplated was “necessary to preserve life or was advised by two physicians to be necessary for that purpose;” and that it was sufficient for the defendant to show that he honestly believed the foetus to be dead, and that the use of the chloroform was to prepare for its removal without pain to the patient.

The history of the statute shows that it was designed to punish the removal of a “vitalized embryo”; and that phrase was in use until the abbreviated form of the codification was adopted.

And I think we may assume that that continued to be the intent of the legislature. For, after the embryo is dead, it would seem, even to a layman, that the wise and humane aet would be to remove it.

Dr. Hamilton testified (p. 150 of the record) that:

“It is good practice to remove a dead foetus whenever the condition can be made out.”

We think, therefore, that the removal of a dead foetus was not, in contemplation of the statute, producing a miscarriage.

If done, unlawfully, by unprofessional hands, or without reasonable grounds to believe the foetus to be dead, and death to the patients resuts, the operator would be guilty of manslaughter, but not of the crime charged.

It is suggested that to permit an acquittal on the ground that the defendant acted on an honest belief that the foetus was dead, is to open a wide door of escape for abortionists, for they would always claim an honest belief that the foetus of the victim was dead:

That does not follow. The jury would always consider whether there were any reasonable grounds for' such belief. It is not to be presumed that a claim of honesty of purpose will be allowed simply because asserted, or as against facts and circumstances inconsistent therewith. Intent is of the essence of the crime, and defendant should be allowed to show an innocent intent, and have the jury instructed that the evidence with reference thereto may be considered.

It is contended by the state that instruction No. 5 is faulty because it does not provide that the honest belief of the accused must be based upon reasonable grounds, as when self-defense is claimed as necessary to preserve life.

The distinction is that self-defense is an affirmative defense to be made out by the accused; whereas, here the instruction requested was simply to weaken the case of the state, upon which the burden rests to prove the criminal intent. If the jury should find, according to the instruction, that the intent was not to destroy foetal life but to relieve the patient of a foetus already dead, then the accused was entitled to acquittal because the state had failed to prove the alleged intent.

We think, therefore, under the defense that the foetus was thought to be dead, that instruction No. 5 should have been given.

Third. Lastly, we think the verdict was not justified by evidence of guilt beyond a reasonable doubt.

Defendant’s story, if true, is consistent with innocence, and with all the circumstances and all the evidence, except that of the husband of the victim, who, by his own confession, is pariiceps minims.

According to Dr. Tippie’s testimony, upon complaint of the patient, he made three examinations and found bloody and purulent discharges; and upon final confession of the patient that she had used a lead pencil to bring about a miscarriage, concluded that the instrument had, at least, been successful in mutilating the parts and perhaps in killing the foetus; and that, if so, it would be proper to operate.

But, before operation, and after chloroform had been administered, he had cleaned the parts and introduced a speculum and curet; and not discovering the serious condition that he had anticipated, withdrew the instruments, decided not to operate then, and told his assistant that he was “.through.” This language, uttered at the time alleged, is confirmed by his assistant, who appeared as a witness for the state.

A few minutes thereafter the patient died from the effects of the chloroform.

An autopsy showed that the foetus had not been disturbed nor mutilated and that the foetus showed a period of four or five months’ gestation.

The testimony of medical witnesses was that it was quite difficult, at that age, to determine whether it was dead or alive, and that the alleged symptoms of bloody and purulent discharges, and chilliness of the patient, were in harmony with the theory that the foetus was dead, and that the reported use of a pencil would strengthen that opinion.

As against this there is the testimony of the husband that he arranged in his preliminary interview with the doctor for the procurement of a miscarriage.

¥e think this testimony, contradicted, in essential particulars, should not weigh against the presumption of innocence, a good reputation and a plausible connected story, to the extent that it warrants a verdict of guilty beyond a reasonable doubt.

For these reasons we think the motion by defendant for an instructed verdict of not guilty should have been sustained.

Judgment reversed and the accused discharged.

Allread and Ferneding, JJ„ concur.

      Modified and remanded, no op., State v. Tippie, 58 Bull. 423.


author: POWELL, J.

text:
    JUDGMENTS AND DECREES — REVIVOR.
    [Wayne (5th) Circuit Court,
    October 14, 1911.]
    Voorhees, Shields and Powell, JJ.

      James Van Nover v. David Eshleman.
    Conditional Order of Revivor of Dormant Judgment Revives Judgment for all Purposes and Sustains Order of Execution.
    When a conditional order of revivor of a dormant judgment is made, the judgment is revived for all purposes for which a judgment may be revived and will sustain an order of execution issued thereon, subject to the condition that if the judgment debtor,. within a time fixed in the order of revivor, can show cause why said judgment ought not to have been revived, the order of revivor will be set aside.
    [Syllabus by the court.]
    Error to common pleas court.

      M. L. Spooner and John McSweeny, for plaintiff in error.

      A. D. Metz, for defendant in error.

       Affirmed, no op., Esheiman v. Van Nover, 58 Bull. 434.

   POWELL, J.

This is an action by the plaintiff in error to reverse the judgment of the court of common pleas setting aside an execution issued out of that court of January 27, 1908, in favor of plaintiff in error and against the defendant in error.

The record discloses that the plaintiff in error is the owner of a judgment which stands upon the records of this county in his favor against the defendant in error, David Eshleman; that prior to January 25, 1908, the said judgment had become dormant, and on that date the plaintiff in error filed his application for a conditional order of revivor of the said judgment — - which order was that day allowed and entered in the journal; that notice thereof was served upon the defendant in error, and an execution was issued on said judgment on January 27, 1908, which execution was levied on certain real estate of the defendant in error situated in Cuyahoga county, Ohio.

The record also shows that an issue was made up on the application for revivor of the judgment, which was tried and decided in favor of the plaintiff in error and final order entered on March 11, 1908. The defendant in error in June,, 1910, filed a motion to set aside the execution which had been, issued on said judgment on January 27, 1908, which was sustained.

It is the action of the court in sustaining the said motion; and setting aside said execution that is before us for review. A majority of the court are of the opinion that when a conditional order of revivor of a dormant judgment is made, suck order revives the judgment, for all purposes for which a judgment may be revived — subject however, to the terms and conditions made a part of such order.

That is, a conditional order of revivor is a revivor of the judgment subject to the condition that if the judgment debtor, within a time to be fixed in said conditional order, can show-cause why such judgment ought not to have been revived, the; order of revivor will be set aside. •

It is contended strongly that this execution was issued upon a dormant judgment. A majority of the court think it was issued upon a judgment that had been revived by the, conditional order and was no longer dormant. It is also contended that the case of Smith v. Hogg, 52 Ohio St. 527 [40 N. E. Rep. 406], settles the question in controversy here. We do not think this ease decides the question presented. It holds;, and decides that when a dormant judgment is revived, all the liens that were valid under said judgment before it became dormant, are re-instated and again become valid liens by suchr. revivor. It does not decide when a conditional order of revivor* takes effect so that an execution may issue thereon. We think: that a dormant judgment, can only be revived by an order of the court in which proceedings for revivor are pending, whether-such order be conditional or absolute. A conditional order of revivor is a revivor of the judgment subject to be defeated! by the judgment debtor showing that the judgment has been, paid, settled or barred by the statute of limitations, as thes© are practically the only defenses that can be made to the revivor of a dormant judgment.

We think that when this conditional order was entered on January 25th, 1908, the judgment was no longer dormant, but revived, and as such revived judgment would sustain the execution issued thereon January 27, 1908.

This conclusion is supported by the practice in other states, and by the former practice in Ohio, where judgments were revived upon a writ of scire facias, and which practice still prevails in many of the other states. It is the practice in Indiana that when a judgment becomes dormant, a motion may be filed for leave to issue execution thereon, and the action of the •court sustaining such motion has the same effect that the order •of revivor does in Ohio.

We think that revivor by conditional order is a summary proceeding, and intended by the legislature so to be, in order to reach the property of the judgment debtor, that otherwise might be encumbered or conveyed before an absolute order of revivor could be obtained upon a petition for that purpose.

We further think that the second order entered upon an .application for a conditional order of revivor has no other legal effect than to cut off, or foreclose, the right of the judgment •debtor to set up a defense to the revivor of the judgment in “that proceeding. The statute is, that unless the judgment debtor shows sufficient cause to the contrary the judgment «hall “stand revived,” or as we construe it, continue revived, having already been revived by the conditional order entered on the filing of the application.

We do not see any inherent difficulty in this construction of “the statute, such as that the property of the judgment debtor might be seized upon execution and held before a final determination of any question he might make as to the validity ■of such judgment could be had. The statute requires notice ' to be given such debtor, and allows him to make any claim or defense he may have against the order of revivor of such judgment, and if his property has been wrongfully seized the court can in the same proceeding issue a restraining order to-prevent a sale of the same until a final hearing can be had.

With this view of the question involved, a majority of the court think that the judgment of the court of common pleas-should be reversed at the costs of the defendant in error.

Voorhees and Shields, JJ., concur.


author: JONES, J.

text:
    SCHOOLS AND SCHOOLHOUSES.
    [Hamilton (1st) Circuit Court,
    July 8, 1911.]
    Smith, Swing and Jones, JJ.

      Concord Spec. Sch. Dist. (Bd. of Ed.) v. Blue Ash Spec. Sch. Dist. (Bd. of Ed.)
    Measurement of Distance Pupils Must Travel to School.
    In assigning pupils to the public school nearest to their residence,, the distance should he measured by the most direct path from the schoolhouse door to the middle of the highway and thence* to the said residence.
    Error to common pleas.

      H. H. Hoslrooh, for plaintiff in error:
    Cited and commented upon by the following authorities:Board of Education v. Board of Education, 58 Ohio St. 390 [50 N. E. Rep. 812] ; 8 Am. & Eng. Enc. Law (2 ed.) 528; Cooper v. Van Wert Co. (Comrs.) 16 Dee. 638 (4 N. S. 185);, Cease v. Carlisle, 15 Dee. 435; 26 Am. & Eng. Enc. Law (2 ed.) 672; Currier v. Railway, 11 Ohio St. 228.

      Chas. W. Hoffman, for defendant in error.

      Affirmed, no op., 87 O. S. 139.

   JONES, J.

In determining the distance a pupil of a public school must travel under Gen. Code 7735, the measurement should be made-from the door of the schoolhouse along the center of the most direct public ■ highway to the nearest point of the curtilage of the pupil’s residence, including in said measurement the distances from the schoolhouse door and said point in the curtilage, respectively, by the most direct walk, lane, or path to the center •of the highway.

It appears from the agreed statement of facts that the distance so measured in this ease is more than one and one-half miles and the judgment below is, therefore, affirmed.

Smith and Swing, JJ., concur.


author: NORRIS, J.

text:
    BILLS AND NOTES.
    [Geauga (7th) Court of Appeals,
    April Term, 1913.]
    Metcalfe, Norris and Pollock, JJ.
    James P. Ragan v. C. C. Sherman.
    ¡Burden on Endorsee from Original Holder to Prove Title Acquired as Holder in Due Course, when Original Holder Acquired Title by Fraud.
    By virtue of Gen. Code 8157 and 8164 in an action on a promissory note by an endorsee who acquired title from the original holder, when it is shown that the title of the original holder was defective by reason of misrepresentation and fraud in procuring the note and failure of consideration therefor, the burden is on the holder to prove that he acquired the title as a holder in due course.
    '[Syllabus by the court.]
    Error to common pleas court.

      G. A. Wilmot, for plaintiff in error.

      H. O. Bostwick, for defendant in error.
   NORRIS, J.

The plaintiff in error was plaintiff below, and in his petition the plaintiff sought to recover from the defendant, Sherman, on three promisory notes of $300 each, and the foreclosure •of a mortgage securing those notes. These three notes were .given to the Morning Star Manufacturing Company. The plaintiff in his petition alleges that he is the holder in due course of these notes before due, and seeks to recover judgment on these three causes of action and a foreclosure of the mortgage.

The defendant, in his answer, admits the execution of the notes but says they were given to the Morning Star Manufacturing Company for a threshing machine, and that it was represented to him at the time of purchase of this threshing machine that it was a first class machine in every way, better than any other on the market, and would do better work and had no superior for the separation of grain from the straw under all conditions; and that there was a warranty; also that the machine was of that character; and that relying upon these representations and this warranty and trusting the representations of the company in that respect he took the machine and executed these notes. That it turned out that the machine was utterly worthless, the representations were not true, and there was a breach of the warranty. The machine would not do any work and they tendered it back to the company and the company failed and refused to make a good machine, or make their warranty good, and failed to furnish another machine, and by reason of these facts there was an entire failure of consideration for these three notes.

The case went to trial to a jury on the first three causes of action, but it appeared as to the first note, by the plaintiff’s testimony that he acquired that after its maturity, the other two he claims to have acquired before maturity. Testimony was offered by,the plaintiff tending to show that he, at a certain time, and before the maturity of the second and third notes acquired them before due. These notes, with a lot of other notes were given to him, and he took them to a bank in Napoleon, perhaps the.one where this manfacturing company did business, and deposited them for collateral security to his note for $6000, which he took and gave to the manufacturing company and took no note back. That subsequently he was compelled to pay the note to the bank and took up these notes with others; and that at that time and previous thereto the company had gone into bankruptcy. When he took them first they were, indorsed by the manufacturing company through its secretary.

On the trial of the case the defendant offered proof tending-to establish the allegations of the answer, and we think the-testimony very clearly does establish the truth of those allegations. That is, that the machine was worthless, that the representations were made as claimed and that it was tendered back, and the various other allegations in the answer there is proof tending to support.

Complaint is made of refusal to charge as requested, and the admission of certain testimony. A verdict was returned for the defendant. It is claimed here that the court erred in refusing to charge two requests, and first was a request for the-direction of a verdict in favor of the plaintiff as to the second cause of action. And the other was a request to direct a verdict as to the third cause of action.

There was no evidence in this ease on the part of the defendant tending’ to prove that the plaintiff at the time he acquired these notes had knowledge of their infirmity, that is that they were given for a worthless machine, and. that the consideration therefor had failed, and the misrepresentations with reference to this machine, and a determination whether under a case under the law as it now stands it was required of the defendant is a determination of all the questions in this ease.

General Code 8164 as to commercial paper reads as follows :

“Every holder is deemed prima facie to be a holder in due-course ; but when it is shown that the title' of any person who negotiated the instrument was defective, the burden is on the holder to prove that he or some other person under whom he; claims acquired the title as a holder in due course.”

General Code 8157 states what the plaintiff must prove-to show he is a holder in due course.

“One is a holder in due course who has taken the instrument under the following conditions: That it is complete and regular on its face. That he became the holder of it. before it.was overdue, and without notice that it previously had been dishonored, if such was the fact. That he took it in good faith and for value. That at the time it was negotiated to him he had no notice of any infirmity in the instrument or defect in the title of the person negotiating it.”

Plaintiff offered proof to show he was the owner of the note. Defendant offered proof tending clearly to establish under this section of the statute, an infirmity in this instrument, that he had a defense to it as against the payee of the note, and this question arises, was the plaintiff under this statute under those circumstances required to prove that he became the holder of it without notice of any infirmity in the instrument? The plain reading of this statute would seem to us to so indicate, and this statute has been before the circuit court and received a construction. The case of Thompson v. Bank, 32 O. C. C. 131 (13 N. S. 515), the second proposition of the syllabus reads as follows:

“Under Gen. Code 8110, in an action on a note by an endorsee, when a defense is established against the original payee, the burden is upon the holder to show that he or someone under whom he claims acquired the title as a holder in due course.”'

And the court, by Judge Wildman in that case after reciting these statutes and referring to the old rule of the common law which perhaps put the burden of showing that fact upon, the defendant, uses this language in his opinion:

“In other words, if a defense is established against the' original payee, then the holder who claims to be the holder in due course, in order to substantiate that claim, must prove' the fourth condition to which I have referred as embodied in Gen. Code 8157; that is, that at the time it was negotiated to-him he had no notice of any infirmity in the instrument or defect in the title of the person negotiating it. Taking the sections together, the burden, after the establishing of a defense against the original payee, is shifted to the holder of the instrument to prove as a negative fact lack of knowledge of any infirmity in the instrument or defect of the title of the person. negotiating it. He must show that he has no knowledge of the defense so established.”

Applying that rule to this case: The defendant did show, as we think, a complete defense against the payee of this note and that thereby under these statutes and this ruling with respect to them, the burden was shifted to the plaintiff then to prove that he was an innocent holder of the note in due course and had no notice of any infirmity in it. No such evidence was offered in the case as shown by this record. Now of course if that burden was upon the plaintiff then the requests to charge to direct a verdict in favor of the plaintiff was not proper and there was no error in refusing them. Again we think the court erred in admitting exhibits A and B, letters addressed to Mr. Durfee, if I remember the name. I cannot see how those letters were competent evidence in any way, ¡but there was abundant evidence to show that this machine was worthless without them, so they were not prejudicial to the plaintiff in error. The view we have taken of this ease is that the judgment of the court below should be affirmed.

Metcalfe and Pollock, JJ., concur.