text:
    The City of East Cleveland v. The Frisbie Co.

      Municipal corporations — Contracts — Failure to advertise for bids — Liability of city — Water mains constructed in streets not dedicated.

    An action does not lie against a municipality on a contract jjitered into by waterworks trustees for the laying of pipe in streets not yet dedicated, payment therefor not to be made until such time as the earnings from said” pipes reach ten per cent, per annum of the cost of installation, where bids for said work were not solicited by advertisement in accordance with the statutory requirement.
    (Decided July 1, 1917.)
    Error : Court of Appeals for Cuyahoga county.

      Mr. E. A. Binyon, for plaintiff in error.

      Messrs. Clum & Marty, for defendant in error.
   Lieghley, J.

The parties were in reverse order in the court below, and for convenience will be so mentioned herein.

The plaintiff, The Frisbie Company, filed its petition in the court of common pleas declaring in three causes of action that in three different. allotments it installed water pipes under contract with the defendant to repay it when the water rentals on each particular street should in any one year amount to ten per cent, of the cost of installation. The amount claimed in the three causes of action is $19,815.78. It bases .its express contract upon resolutions passed by the Water Board of East Cleveland to the effect that the proposal on the part of plaintiff to install water pipe on the several streets be accepted, provided the cost does not exceed the village engineer’s estimate and the work is done subject to the approval of the engineer and inspectors of East Cleveland Village. It was further provided by resolution that when the water rentals of any line of pipe on any street thus constructed shall equal ten per cent, of the cost of •construction, the board will, if in funds, repay The Frisbie Company the cost of construction. The petition declares further that in pursuance of these resolutions and the permission 'granted pipes were laid in the years 1902 and 1903 on a number of streets at a cost in amount above stated; that in the year ending March 1, 1915, the water rentals received by the city from each of the separate systems aggregated a sum in excess of ten per cent, of the cost of installation; that the plaintiff duly tendered to the defendant a deed conveying.to the city all its interest in the said water systems so installed by it and requested payment as per resolutions of 1901 and 1902; and that the city council refused to pay plaintiff.

In the fourth cause of action it is claimed that the city had converted to its own use the water systems above referred to, installed by plaintiff on various streets in said city, and the right of recovery on the ground of conversion is claimed.

Trial was had below, and a jury waived, which trial resulted in judgment for plaintiff for the amount above stated. Error is now prosecuted to this court to reverse the same.

The first three causes of action are predicated upon an express contract with the city, as above claimed, to pay for the installation of said water system when the rentals should amount to ten per cent, of the cost.

The powers of the board of trustees of the waterworks of villages are derived from and limited by Sections 2407 tp- 2435, inclusive, Revised Statutes of 1900. The defendant was a villáge at all times covered by the series of transaction's involved in this lawsuit. Section 2415, Revised Statutes, provides and grants power to the board of trustees to make contracts, and reads as follows: “Sec. 2415. The trustees or board shall be authorized to make contracts for the building of machinery, water-works, buildings, reservoirs, and the enlargement and repair thereof, and the manufacture and laying down of pipe, and the furnishing and supplying with connections all necessary fire hydrants for fire department purposes, and keeping the same in repair, and for all other necessary purposes to the full and efficient management and construction of water-works.”

Section 2419, Revised Statutes, provides the rules and the manner and method whereby the trustées may enter into contracts, and reads as follows: promptness, and fidelity; and if such be not the . case, the trustees may award the contract to the next lowest bidder, or decline to contract, and advertise again.”

“Sec. 2419. The trustees or boardj before enter-, ing into any contract for work to be done; the estimated cost of which exceeds five hundred dollars, shall cause at least two weeks’ notice to be given, in one or more daily newspapers of general circulation in the corporation, that proposals will be received by the trustees, for the performing of the work specified in such notice; and the trustees shall contract' with 'the lowest bidder, if in their opinion he can be depended on to do the work with ability,

As we understand it, the board of trustees had only such power to make and enter into contracts, and may only enter into contracts in such manner as the statute gives and provides.

Quoting from Ravenna v. Penna. Co., 45 Ohio St., 118:

“Municipal corporations, in their public capacity, possess such powers and such only, as are expressly granted by statute, and such as may be implied as essential to carry into effect those which are expressly granted.”

To the same effect is State Board of Health v. Greenville, 86 Ohio St., 1, 24.

At the time the -resolutions were passed by the village the streets through which and into which the plaintiff sought permission to- extend water pipes had not yet been dedicated to the village, and were at the time the property of the plaintiff. It is claimed that' said .section has reference only to cases in which the municipality is doing the work. It is urged that the streets being the property of plaintiff at the time avoided the necessity of competitive bidding. A number of cases are cited by counsel in which the necessity of competitive bidding was obviated, but an examination of these authorities will disclose the fact that the reasons assigned therefor were- either that the subject-matter of the work was such that competitive bidding was impossible, or impracticable because of its artistic nature, or was monopolistic, or rested upon the use of some exclusive patent or franchise or sole source of supply. We do not think this doctrine 'has any application to the situation in the case at bar, for the laying of water pipes i5 not included within either of the actions referred to.

We are of the opinion that express contracts for the doing of the work and the payment therefor under such circumstances as are claimed in this case can only be accomplished to make the same binding upon both parties by a strict compliance with the .statutes, particularly the two sections above quoted. (Newton v. City of Toledo et al., 18 C. C., 756, affirmed without opinion, 52 Ohio St., 649.) We quote propositions 1 and 3 of the syllabus of the case just cited:

“(1) Sec. 2419, R. S., defining the powers of water works trustees, which by the act of January 22, 1889 (86 O. L., 7), is made applicable to the Trustees of the Natural Gas Works of Toledo, provides that ‘the trustee or board, before entering into any contract for work to be done, the estimated cost of which exceeds $500, shall cause at least two weeks’ notice to be given in one or more daily newspapers of general circulation in the corporation’ : Held, that the word ‘work’ in this statute includes material to be furnished; that a contract for the purchase by the Toledo Gas Trustees of pipe already manufactured and on hand, without advertising for bids therefor, was not in conformity with the requirements of sec. 2419, R. S., and can not be enforced against the city.”
“(3) Although under sec. 2415, R. S., the gas trustees of Toledo, the same as water works trustees, are empowered to make contracts, such power must he taken with the limitations prescribed by-secs. 17 and 2702, R. S., and they can not enter into a contract without a fünd applicable for the purpose provided for by tax, assessment or otherwise, nor until a certificate of the city clerk is furnished that the money required is in the treasury, and the city is not bound by contracts made in disregard of these provisions of the statute.”

Something is said in the petition to the effect that the village had established a custom of securing extensions to its waterworks system in accordance with the method set forth in the petition in this case, and some reliance was placed upon this custom in the argument before us. However, we do not understand that custom can create a right or liability where none otherwise exists. Quoting from the syllabus of Thomas v. The Guarantee Title & Trust Co., 81 Ohio St., 432:

“Usage or custom cannot create a contract or liability, where none otherwise exists. A usage or custom can only be used to explain, or aid in the interpretation of, a contract or liability existing independently' of it. It cannot be permitted to contradict or vary the express terms of a contract, nor to vary the legal import thereof.”

It was further urged that the resolutions of the board of trustees were not contracts, yet in the petition those same resolutions are -relied on as creating the contract sued on. The resolutions constitute the acts and -only acts of the village upon which the right of recovery rests. In this manner the failure to. observe the requirements imposed by statute upon the letting of a contract for work is evaded. If the board of trustees by the proceed- - ings had in this case did impose upon 'the village, now city, of East Cleveland the obligation to pay for the installation of these water systems, then a c'lever scheme and plan has been conceived whereby the requirements of the statute may be omitted. • The board of trustees might very well provide in' this manner for the extension of water pipes throughout the entire territory within the village, limits and have the same constructed without competitive bidding, and a decade or more later the inhabitants be obligated to pay without the requirements of any of the statutory safeguards having been complied with at the time the obligation was incurred. We do not think that the board of trustees should be or can be permitted to do indirectly what the statute would forbid its doing directly.

It was said in argument that the plaintiff was never paid for the pipe installed. A deed in evidence discloses a provision therein to the effect that the plaintiff would cause water to be supplied to the residents on the street. It may be true that the cost of installation was not figured into the selling price of the lot, but it is equally true that each purchaser undoubtedly thought he was buying and paying for water pipes when he bought ■the lot, and undoubtedly thought that the cost - thereof was included- in the price paid.

The fourth cause of action is based upon conversion. It is admitted that the pipes were installed and attached by the plaintiff 'to the waterworks system, of defendant. It did so with- the permission of the defendant, and did so upon the condition that the same should 'be installed subject to the approval of the engineer and inspectors of the village. The pipes so laid became a part of the waterworks system of the village, under the circumstances of this case. Upon what theory conversion thereof may be claiméd we are unable to understand. When the plaintiff installed the pipes and dedicated the streets to the village, with the pipes made a part of the village water system, plaintiff must recover upon an express contract the cost of installation, or has no cause of action at all If the plaintiff has no valid contract as a basis for recovery, it has no claim to the pipes and no recovery can be had against the village for the value of the pipes. Court's will leave the parties where they placed themselves. Buchanan Bridge Co. v. Campbell et al., Commissioners, 60 Ohio St., 406.

There can be no recovery from the village upon a basis of an implied contract or on quantum meruit. City of Wellston v. Morgan, 65 Ohio St., 219, and McCormick v. City of Niles, 81 Ohio St., 246.

We are of the opinion under the facts of this case that the plaintiff did not have a legal, binding contract, made according to law with the defendant; that in order to make a binding contract of the character herein claimed the sections of the statutes quoted must be complied with, and a failure to comply therewith, which is admitted in this case, causes the transactions to fall far short of a' legal contract. We understand that these sections must be complied with in all matters involving the construction or extension of a waterworks system, and the only exceptions thereto are, perhaps, items of cost of operation. These statutes are the safeguards imposed 'by the legislature for the protection of the taxpayers and citizens of a municipality. City of Lancaster v. Miller, 58 Ohio St., 558, 575.

But the claim is made that these pipes were to be paid for.by water rentals, the earnings of the water system. For the board to undertake to do so would be a mere subterfuge. One of two things would necessarily occur in order to do so: either water rentals would have been maintained at a special and excessive figure to produce the sum required, thereby indirectly taxing all the water users of the village, or the water rentals would now have to be so raised as to amount to an excessive rental for the sole object and purpose of paying the amount due under this alleged contract. The result would be the same under either procedure. The citizens would foot the bills by permitting the trustees to do indirectly what they are not permitted to do directly. The citizens of the village were entitled to have all the beneficial results of competitive bidding, if any, in the creation of an obligation imposed upon them for the construction or extension of their waterworks system.

We hold that the plaintiff has no express contract which is binding upon the village, now city, of East Cleveland, and that the judgment below is contrary to law; and the same is reversed.

Judgment reversed.

Grant and Carpenter, JJ., concur.


source: Caselaw Access Project

author: Jones, P. J.

license: Public Domain

text:
    Reynolds v. Reynolds et al. Reynolds, Exrx., v. Reynolds et al. Gott v. Reynolds et al.

      Wills — Time of taking effect — -After-acquired property — Section 10579, General Code — Wife as trustee for children — Title of wife in after-acquired realty — Child born after will executed — Share of child v,nder codicil — Interest of contingent devisees — . Termination of trust at time stipulated.

    1. A will is ambulatory in its nature, and takes effect only from the . death of the testator.
    2. The doctrine of implied revocation that existed at common law-prior to the English Wills Act of 1837 does not obtain in Ohio as to after-acquired property devised by will, by virtue of Section 10579, General Code.
    3. At the time of the execution of his will a testator bad two married daughters, children of a first wife, and a son E, who died before the testator and before he reached the age of thirty years. Testator also had two children, C and M, by a second wife; and, after the making of the will and before the execution of the codicil, another son, J, was born. The will devised all the real estate of which testator died seized to his wife, subject to certain trusts in favor of his three children other than his two married daughters, and provided that his wife should hold such real estate as trustee, and deed the different designated parcels respectively to such children on May 9, 1914. The codicil provided for a similar disposition of a piece of real estate acquired subsequent to the making of the will for the benefit of J, and further provided that the devise to J was subject however “to all the conditions imposed upon my other real estate, as mentioned and set out in my above will, and desire that it be placed in the same category in every respect as my other said real estate.” Testator after the execution of the will and codicil acquired other real estate. ■Held:

      . That all the real .estate of which testator died seized passed to and vested in the widow subject only to the trusts as to the tracts enumerated in the will, and she acquired a fee simple estate in the after-acquired realty.
    4. Although such will also provided that should E, C, and M die, leaving no child or children, or should any two of them die, leaving no children or child, the survivor or survivors should take the share of such deceased person or persons, J took the same share in the real estate devised to E, who had died, as the other survivors, by virtue of the codicil.
    S. Such will also provided that should E, C, and M die without leaving issue their several shares should be divided equally between the widow and the two married daughters. Held:

      A definite time having been named for the ending of the trust and the conveyance of the respective parcels of real' estate to the children, and they having received .their portions in keeping therewith, and the contingency provided for under which the married daughters might have acquired title not having arisen they had no interest whatever in the real estate.
    (Decided June 24, 1918.)
    Appeal : Court of Appeals for Hamilton county.

      Messrs. Powell & Smiley and Mr. H. E. Engelhardt, for Statia B. Reynolds et al.

      Messrs. Moulinier, Bettman & Blunt, for Mary L. P. Reynolds Gott.
   Jones, P. J.

The second of. these cases (No. 1291 — Statia B. Reynolds, Exrx., v. Statia B. Reynolds et al.) is an appeal from an action to construe the will and codicil of Edmund Bonaparte Reynolds; while the other two cases (No. 1290— Charles Arthur Reynolds v. Statia B. Reynolds et al., and No. 1295 — Mary L. P. Reynolds Gott v. Charles Arthur Reynolds et al.) are appeals from actions to partition part of the real estate of which he died seized, 'involving also a construction of his will and codicil.

The will was executed under date of February 17, 1890, and the codicil under date of M<cy 30, 1896. Testator died in January, 1907.

At the time the will was executed testator had tory situated on Langdon Alley in rear of Nos. 11 and 13 East Sixth Street * * *.

“All of the above property to be held in trust by my said trustee, the said Statia B. Reynolds, until the year 1914 (May 9th), when my said daughter Mary Lurany Palmer Reynolds shall attain her thirtieth year. At that time I direct my said trustee, or her successor, to convey by a good and sufficient deed in fee simplé said above described real estate, to my said daughter, Mary. Lurany Palmer Reynolds.
“Sixth: I hereby give, devise and bequeath to my beloved wife, Statia B. Reynolds, two pairs of diamond ear rings, one two and one-half carats and one of six carats; also two diamond finger rings (one solitaire, and one five-stone ring), and all other jewelry now in her possession; also piano, household furniture and all other articles of family and domestic use.
“My wife is also to have the use of my residence No. 182 Sycamore Street, Cincinnati, Ohio, without paying any rent therefor, for the term of five years after my death, and this I give to her in lieu, of her widow’s allowance for one year, which, under the laws of Ohio she would be entitled to. My wife may remain in the house, or rent the same, if she so desires, and the rent therefrom she shall apply to her own and separate use, provided, however, she remains unmarried, but upon the marriage of my said wife, then my residence shall be rented and proceeds ‘pooled’ with the income from my other real estate, and divided, as set forth in the succeeding clause of my said will, to wit: Clause No. Seven. Between my said wife, my two sons, Edward and Charles Arthur, and my daughter, Mary Lurany Palmer.
“Seventh: I hereby direct and will that all income derived from rents on all of my real estate shall be collected monthly by my said trustee, and ‘pooled’ in one general fund, one-quarter of which amount shall each month be deducted and placed to the credit of, and known as a special expense fund, which fund shall be kept separate and apart, and used only b> my said trustee to pay all taxes, insurance, improvements, and repairs on all of my said real estate.
“At the end of every three months, I hereby direct my trustee, or her successor, to divide the net proceeds of all said income equally among my sons, Edward Reynolds, Charles Arthur Reynolds, my daughter, Mary Lurany Palmer Reynolds, and herself, until such times as I have above stated, when my said children above named are to receive in fee simple and absolutely their respective legacies.
“But it is my will that if any of my children herein named, to wit: Edward, Charles Arthur, or Mary Lurany Palmer, should die before attaining the age of thirty years, leaving a child or children, then such child or children shall take such father or mother’s share, as the case may be. In the event the said Edward, Charles Arthur, and Mary Lurany Palmer should die leaving no child or children, or should any two of them die leaving no children, or child, it is my will that the survivor or survivors shall take the share of such deceased person or persons.
“In. the event that all of the above named children should die without leaving issue, I give, devise and 'bequeath their several shares to be divided equally between my wife, Statia B. Reynolds, Virginia Palmer Griffith, and Cora Belle Dresser, and their heirs forever, share- and share alike.”

The codicil provided:

“I hereby ratify and confirm said will in every respect, save so as any part of it is inconsistent with this codicil.
“Since making the above will, there has been born to me a son, Joseph Berchmans Reynolds. On May 29, 1896, I purchased the premises known as Nos. 913 and 915 Race Street, Cincinnati, Ohio, from Mary T. Fry . * * *. Desiring to make proper provision for my said son, Joseph, I give and bequeath to my said son, Joseph Berchmans Reynolds, such premises, subject, however, to all the conditions imposed upon my other real estate, as mentioned and set out in my above will, and desire that it be placed in the same category in every respect as my other said real estate. When my said son, Joseph Berchmans Reynolds, becomes of age, I desire that said real estate be conveyed to him in fee simple by my said trustee above named.”

From the fact that this will enumerates all of the several parcels of real estate owned by the testator at the time of its execution, and the only additional parcel acquired up to the time of the execution of the codicil was described in it, and from the fact that all of these parcels of real estate were subject to the trust created and the provision that after a definite period they should severally be conveyed in fee simple to the respective children, it is contended by counsel that the words of the second item of the will, disposing of the real estate to Statia B. Reynolds, did not convey any interest to her except that which she might take under the trust, and were intended to be limited strictly to the real estate owned at the time of the execution of the will and codicil. This construction is directly against the terms of the will and the clear intention of the testator.

A will is ambulatory in its nature, and takes effect only from the death of the testator.

The doctrine of implied revocation that existed at common law prior to the English Wills Act of 1837 does not obtain in Ohio as to after-acquired property devised by will. Ridenour v. Callahan et al., 8 C. C., N. S., 585.

This rule is embodied in our statute, ‘Section 10579, General Code:

“Any estate, right or interest, in lands or personal estate or other property acquired by the testator after making his will, shall pass thereby, as if held or possessed at the time it was made, if such manifestly appears by the will to have been his intention.” ,

The words of the will do not,confine the real estate devised to the wife to that which testator then owned, but described it as “all the real estate of which I may die seized.” The fact that he further added the clause, “all of said real estate being situated in Cincinnati, Ohio,” does not limit the real estate to any particular parcel. It happens that the after-acquired real estate was also all situated in Cincinnati, but the general statement in the will is far different from the language relied upon two married daughters,' >who were children of his first wife, and a son Edward Reynolds, who died December 1, 1897, unmarried and without issue, before reaching the age of thirty years. He also had two children, Charles Arthur and .Mary Lurany Palmer Reynolds, by the second wife; and after the making of the will and before the execution of the codicil another son was born, Joseph Berchmans Reynolds. His second wife, Statia B. Reynolds, and all of these children, except Edward, survived him.

The will is holographic and is too long to. quote in full, involving as it does lengthy descriptions of real estate and several items which it is unnecessary to discüss in the consideration of the questions disputed in these cases.

The will devised all the real estate of which testator might die seized to his-wife, subject to 'certain trusts in favor of his three children other than his two married daughters, and provided that his wife should hold such .real estate as trustee and deed the different parcels respectively to such children on May 9, 1914. The codicil provided for a similar disposition of a piece -of real estate acquired subsequent to the making of the will, for the benefit of the youngest child, .Joseph Berchmans Reynolds, who wa§ born after the making of the will and thus occasioned the drawing of the codicil.

In addition to the real estate particularly described in the will and codicil, all of which was pwned by testator at the time of his -death and which included an undivided one-half interest in certain property fronting on East Sixth street, Sycamore street, New street and North street, which at the time of the making of the will and codicil he owned in connection with S. T. J. Coleman, and which was called because of the shape, the four pieces backing up together, “the Maltese cross,” testator, after the execution of the codicil and prior to his death, acquired from Coleman the other undivided one-half interest in these parcels known as the Maltese cross, and also acquired another piece of real estate fronting on the north side of Sixth street, between Main and Sycamore streets, called the “Peck” property.

One of the main questions in the case is whether this after-acquired property passed under the will, or whether as to it Edmund B. Reynolds died intestate.

This involves the question as to what interest the widow Statia B. Reynolds acquired in the real estate under the will.

Another question to be determined is as to the disposition of the property which under the third item of the will was devised to Edward Reynolds, who, as above stated, died before his father.

The 'will in item nine gave to each of the daughters of the first wife, namely Cora Belle Dresser and Virginia Palmer Griffith, a legacy of $1,000, and it made no further provision for these daughters, stating in that item testator’s reasons for such action. After its probate an action to contest the will was filed by these daughters against the executor’ and devisees, which was settled by the payment to them of $15,000 in addition to the legacies,, and a receipt was given by them “in full for all claims and demands of whatever nature we or either of us have against the estate of. Edmund B. Reynolds, deceased. The said amount representing what we have agreed to accept in full for our share in the estate of the said Edmund B. Reynolds, deceased.”

Corá B. Dresser and Virginia P. Griffith, however, while asserting no present interest in the real estate of which their father died seized, are contending that under 'item seven of the will they are still entitled to a remote contingent interest in certain real estate ‘which was placed in trust under the will. The other parties to the litigation resist this claim, and insist that if a construction were had which would allow the claim, they would be estopped from asserting any interest by reason of this settlement.

In order to discuss these questions it is desirable to set out the language used in certain paragraphs of the will, as follows:

“Second: I hereby give, devise and bequeath to my beloved wife, Statia B. Reynolds, all the ■ real estate of which I may die seized, all of said real estate being situated in Cincinnati, Ohio, subject, however, to the following trusts, to wit:
“Third: I hereby give, devise and bequeath to my son, Edward Reynolds, his heirs and assigns forever, the premises known as Nos. 7 and 9 East Sixth Street, Cincinnati, Ohio. [Further description omitted.] The said above described premises to be held in trust by my said trustee, the said Statia B. Reynolds, until the year 1914 (May 9th), when the said Edward Reynolds shall attain his thirtieth year. At that time I direct my said trustee, or her successor, to convey by a good and suffident deed in fee simple, said above described real estate, to my said son, Edward Reynolds.
“Fourth: I do hereby give, devise and bequeath to my son, Charles Arthur Reynolds, his heirs and assigns forever, the following real estate, to wit:
“The premises known as No. 158 Main Street, Cincinnati, Ohio * * * also an undivided one-half interest in the premises known as Nos. 44 and 46 East Sixth Street, Cincinnati, Ohio * * * also, the undivided one half of the premises known as Ño. 206 Sycamore Street * * * also the undivided one-half of the premises known as No. 7 North Street, Cincinnati, Ohio * * * also Nos. 9 and 11 North Street. Also • Nos. 3 and 5 New Street, as deeds to Coleman will show the size of lots, the above named property, with the exception of the first ■mentioned piece, being owned jointly by S. T. J. Coleman and myself, all of the above property to be held in trust by my said trustee, the. said Statia B. Reynolds, until the year 1914 (May 9th), when my said son Charles Arthur Reynolds, shall attain his twenty-eighth year. At that time I direct my said trustee, or her successor, to convey by a good and sufficient deed in fee simple said above described real estate to my son Charles Arthur Reynolds.
“Fifth: . I do hereby give, devise and:bequeath to my daughter,- Mary Lurany Palmer Reynolds, her. heirs and assigns forever, the following real estate, to wit: situated on the east side of Sycamore Street, Cincinnati, Ohio, being, the premises known and described as No. 182 Sycamore Street * * * also the five-story brick building or facin Wheeler, Admr., v. Brewster et al., 68 Conn., 177, which case is readily distinguished from this.

Under the second item of the will it was the clear intention of testator to devise to his wife all of the real estate of which he died seized, subject only to the trusts enumerated in the will and its codicil, and such construction must therefore be given.

Although words of inheritance are not mentioned, under the statutory rule found in Section 10580, General Code, this devise carried to Statia B. Reynolds an estate in fee simple in the real estate acquired after the execution of the will and codicil, which was the undivided one-half of the “Maltese cross” and the lot on the' north side of Sixth street known as the “Peck” property.

The next question which present's itself is, What disposition is made of the parcel to be conveyed to Edward Reynolds under item third?

The third paragraph of item seven undertakes to provide for the contingency of the death of the three children who were beneficiaries of the trust and to whom certain parcels were to be conveyed. If the will stood alone, without any codicil, the property devised to Edward under this paragraph would - pass to Charles Arthur and Mary Lurany Palmer Reynolds. But the codicil must be construed in connection with the will. Undertaking to provide for the after-born son Joseph Berchmans, and the newly-acquired property offering an opportunity to "do so without disturbing the previous disposition made to the other three children in the will, testator without the labor of rewriting the will undertook by means of the codicil to put the newly-acquired property and the new son under the same trust which the will had already provided for his other property and his three other children.. And in so doing, in the opinion of the court, he undertook to place Joseph Berchmans Reynolds, as well as the Race street property, “in the same category in every respect” as his three other children and his other parcels of real estate under the trust provided by the seventh item of the will.

This apparently has been the construction of the parties. The rentals from the Race street property have been placed in the same “pool” in one general fund, and the net revenue has been distributed equally among the widow, Charles Arthur, Mary Lurany Palmer and Joseph Berchmans. It would be a narrow construction of this codicil, and not in accordance with the evident intention of the testator, to construe its words to apply only to the land, and' not to the individual, Joseph Berchmans ■Reynolds'. Undoubtedly, had Joseph died without issue before attaining the age of twenty-one, and had Edward survived, Mrs. Gott would be insisting upon her right to participate in a share of the Race street property under the terms of the third paragraph of the seventh item of the will.

A careful consideration of the will in connection with the codicil — and under the law they must be treated together as one document — would practically disclose the intention of the testator that the codicil should be construed as though the entire will were rewritten and the codicil placed in the will, occupying a position similar to items third, fourth and fifth, making item seventh apply in full ' to it.

Under this construction we hold that the real estate devised to Edward in item third, known as Nos. 7 and 9 East Sixth street, passes in fee simple in equal shares to Charles Arthur, Mary L*. P., and Joseph Berchmans Reynolds.

This construction of the codicil does not extend to placing Joseph Berchmans in the tenth item of the will, and he takes no share under the will or codicil in the personal property of testator.

• The only other question to be determined is as to the remote contingent interest of Virginia P. Griffith and Cora Belle 'Dresser under the last paragraph of the seventh, item of the will.

While the first two lines of this item of the will. “In the event that all of the above named children should die without leaving issue,” relate in-general terms to the death of thp previously named children, this paragraph must be read in connection with the language preceding in item seven. This preceding language fixed a definite time for the ending of the trust and the conveyance • to such children of their respective parcels of real estate in fee simple. This time was May 9, 1914, as to all except Joseph Berchmans'Reynolds, for whom it was August 20, 1916. The time of the termination . of the trust has therefore passed as to all of these •children, and they have, or should have, received their respective titles in fee simple, and the contingency provided for, under which Mrs. Griffith and. Mrs. Dresser might have acquired title, has not arisen, and they therefore have no interest whatever in this real estate.

Decrees may be taken in accordance with the construction above given.

Decrees accordingly.

Wilson and Hamilton, JJ., concur.


author: Hamilton, J.

text:
    Harmon et al., Receivers, v. Jewett, Bigelow & Brooks, a Corporation, etc.

      Railroads — Aciion to collect, demurrage — Defense by shipper — Inability to offset "debit" days by “credit” days —Because carriers discontinued unloading service — Breach of co'ntract — Remedy of shipper.

    Where by the demurrage rules of a railroad: the period from Novem- ■ ber 1 to December 18 was to be considered as one month in computing time detention, and a shipper was prevented from earning “credit” days with which to offset “debits,!’ as provided in said demurrage rules, because of the action of the railroad - in dismantling a coal-loading machine on December 1, the demurrage must be settled according to the state of the account as of December 1, and any injuries said shipper may have received by reason of the dismantling of the loading machine must be recovered in an action brought for that purpose and upon actual proof of loss and the violation of the contract as contained in said demurrage rules.
    (Decided June 24, 1918.)
    Error: Court of Appeals for Hamilton county.

      Messrs. Waite, Schindel & Bayless and Mr. Herbert Shaffer, for plaintiffs in error.

      Messrs. Beaumont, Smith & Harris, for defendant in error.
   Hamilton, J.

This action was brought in the ■common pleas court of Hamilton county, Ohio, by the plaintiffs in error against the defendant in error to recover the sum of $1,092, claimed as demurrage 'accumulated from the detention of plaintiffs’ cars in their yards at Toledo, Ohio, under and by virtue of the provisions of Demurrage Tariff No. 5404-F, I. C. C., No. 297, which tariff had been duly filed with the Interstate Commerce Commission and published and posted according to law.

The cause was submitted to the court of common pleas in the form of an agreed case, without' pleadings, under the provisions of Section 11472, General Code.

There is no dispute as to the amount of the demurrage nor as to the fact that the demurrage had lawfully accumulated under the provisions of the demurrage tariff.

Defendant in error, urging that the demurrage tariff is a binding contract between the parties, contends that plaintiffs in error are not entitled to maintain this action or to recover on the claim for the reason that plaintiffs in error breached the contract.

Plaintiffs operated a railroad, and, in addition thereto, maintained at its terminus at Toledo a dumping machine for the purpose of loading coal into vessels, for the Jake trade, the use of which loading machine was included in the carrying freight charges.

On April 14, 1914, The Cincinnati, Hamilton he Dayton Railway Company duly issued and filed with the Interstate Commerce Commission its local freight tariff, which became effective May 15, 1914, providing car demurrage rules applicable on lake coal, vessel fuel or coke held for trans-shipment at Toledo, Ohio. Said demurrage, rules provided, among other things, as follows:

“For the purpose of computing time detention shall be computed for calendar monthly periods, except April 15th to May 31st, inclusive, which shall be considered as May detention and treated as one calendar month. November 1st to December 18th, inclusive, shall be considered as November detention and treated as one calendar month.”

Said demurrage tariffs further provide:

“Cars of lake coal, vessel fuel or coke held at the above points for lake shipments or delivery to vessels will be charged demurrage computed under the following rules:
“Computing Time.
“Rule 1 — (a) Five days’ free time will be allowed, to be computed on the basis of the detention to all cars released during each calendar month. * * *
“(f) From the total of the days’ detention to all cars thus obtained
“(1) Deduct the number of Sundays and legal holidays included in the total detention of the car. •Legal holidays are: Memorial, Independence, Labor, Columbus, Thanksgiving'and Christmas days.
'“(2) Also deduct 5 days’ free time allowance for each car.
“(3) After making the deductions as provided •above in ‘f-1’ and £f-2’, the remainder, if any, will be the number of days for which the consignee will be charged demurrage, except that, if there are credit days in any current calendar month in excess of debit days, such excess credit days shall be applied to or deducted from the excess debit days of the preceding calendar month only.
“Note: — Excess credit days of any current calendar month can not be deducted from excess debit days of the following calendar month.”

It will be noted that the demurrage charges are designated as “debits,” and that the days saved from thosé allowed free of demurrage are designated as “credit” days, for which deductions may be made from the excess debit days.

On November 6, 1914, plaintiffs notified the defendant that not later than December 1 they expected to commence dismantling the old machine for the purpose of constructing a new one fqr 'handling, the lake coal; and, as stated, they did start work on December 1st in the actual dismantling of this structure.

It is admitted that after November 30 defendant tendered no coal for shipment or unloading, and ■that the demurrage claimed under the demurrage tariff had all accumulated prior thereto. Neither is it claimed that defendant tendered any shipments of coal to plaintiffs for shipment after the date of the notice above referred to.

Defendant in error urges that by reason of the dismantling of the loading machine it was prevented from earning credits which under the terms of the demurrage tariff would offset the debits which had accumulated; that the demurrage tariff constituted a contract between plaintiffs in error and defendant in error and that said contract continued to December 18, the date upon which it was agreed navigation on the lake should cease, and that plaintiffs in error therefore breached said contract and by reason thereof are not entitled to maintain this action to recover demurrage claimed. No claim for damage is set up by defendant in error.

We can not determine the legal question involved without taking into consideration the Interstate Commerce Act of February 4, 1887, which makes it the indispensable duty of an interstate railroad carrier to file and publish schedules of all rates and any rules and regulations which in any wise “change, affect or determine any part of the aggregate of such aforesaid rates,” and prohibits it from charging or receiving any greater or less or different compensation than specified in such schedules, from extending to any shipper any privilege or facilities “except such as are specified in such tariffs,” and from making any change in such rates except by plainly changing the schedules or filing or publishing new ones, after 30 days’ notice; on the delivery of goods for carriage by a shipper, he has a contract right to the rates named in the schedule at the time on file and published.

Certain penalties are attached for the violation of any of the provisions of this act.

In the case of Pennsylvania Railroad Co. v. International Coal Mining Co., 230 U. S., 184, the court says in the syllabus:

“A published tariff, so long as it is in force, has the effect of a statute and is binding alike on carrier and shipper. * * *
“While the Act to Regulate Commerce is in many respects highly penal, there is no fixed measure of damages in favor of a shipper compelled to pay the published tariff rate while his favored competitors are given a lesser rate by means of rebates. * * *
“The Act to Regulate Commerce imposes on the carrier heavy penalties for its violations -payable to the Government and independent of the amount of rebates paid, and is thus a terror to evildoers; but for private wrongs by which private injury is inflicted the 'compensation recoverable by the injured shipper is measured by the damages actually sustained and proved.”

It will be seen in applying this to the instant case that if the defendant in error were permitted to deny the right of plaintiffs in error to collect the demurrage, it would in effect give the defendant shipper the right to name the amount of damage he should recover, and would be directly against the holding in this case.

It has also been held that the provisions of the act must be read into and constitute a part of the agreement based on the tariff schedule. It therefore becomes incumbent upon the plaintiffs in error to collect the demurrage in question to avoid liability under the Interstate Commerce Act.

In the case of Horton v. Tonopah & Goldfield Rd. Co., 225 Fed. Rep., 406, the court says:

“Where the rules of a car service association, regularly filed with the Interstate Commerce Commission, prohibited agents from storing carload ■freight in warehouses or on ground; belonging to ■the railroad company without adding car service charges, the same as if the freight had been left in the car, the carrier’s right to collect demurrage does not end when the shipment is unloaded, so that the car may be released for service, the rule being obligatory upon the carrier, and violations thereof constituting unlawful discriminations.”

It will, therefore, be seen that a failure to collect ‘the demurrage in question would be a violation of the Interstate Commerce Act and would open the door for wide abuse in the nature of indirect rebate, and would have a tendency -to make ineffectual the operation of the law itself.

Wé -are of the opinion that under the Interstate Commerce Act, and the 'holdings above cited, and other authorities submitted, the defendant in error must pay the amount of demurrage claimed, and any injuries it may have received by reason of the dismantling of the loading machine prior to December 18, 1914, would have to be recovered in an action brought for that purpose and upon actual proof of the violation of the contract and loss thereunder. Again quoting from Pennsylvania Rd. Co. v. Coal Co., supra, “for private wrongs by which private injury is inflicted the compensation recoverable by the injured shipper is measured by the damages actually sustained and proved.”

For the reasons above stated, the judgment will be reversed, and judgment may be entered here for the .amount claimed. • -

Judgment reversed and judgment for plaintiffs in error.

Jones, P. J., and Wilson, J., concur.


author: Farr, J.

text:
    Antonio v. Milliken, Sheriff.

      Criminal law — Cotirt may suspend sentence during term, when — Misdemeanors — Section 13711, General Code.

    In misdemeanor cases the trial court has power under favor of Section 13711, General Code, to suspend in whole or in part the execution of a sentence at any time during the term at which sentence was passed, even though- the defendant had entered upon the imprisonment ordered by the sentence.
    (Decided March 12, 1918.)
    Error: Court of Appeals for Mahoning county.

      Mr. John Ruffalo, for plaintiff in error.

      Mr. J. P. Huxley, prosecuting attorney, and Mr. H. H. Hull, assistant prosecuting attorney, for defendant in error.
   Farr, J.

In February, 1918, Frederic D. Antonio was -charged in the municipal -court of the city of Youngstown, Mahoning county, under Section 12428, General Code, with torture. He was found guilty and sentenced by the judge of said court to pay a fine of twenty-five dollars and the costs of prosecution, and to be imprisoned in the jail of Mahoning -county for a period of thirty days, and until bis fine and -costs were paid.

Antonio was committed to the -county jail on the -thirteenth day of February, 1918, and a little later paid said fine of twenty-five dollars and costs of prosecution, whereupon the judge of the municipal court suspended the sentence as to • further punishment and issued an order for his release from jail, which order the sheriff of said county declined to honor, or to release plaintiff in error.

An application or petition was filed in the court of common pleas of this county for a writ of habeas corpus. The writ was allowed and duly served. In obedience to the writ Antonio was produced in court, and upon hearing the court held that the judge of the municipal court having sentenced and committed Antonio to the county jail, and the sheriff having taken charge of him under such sentence, the court had lost jurisdiction and could not, therefore, suspend or modify the sentence.

There' are two sections of the General Code which relate to suspension of sentence. The first is Section 13706, which provides that certain prisoners may be put upon probation. This is the general section which applies in case of first offenders. The'next section, and the one involved here, is Section 13711, General Code, which provides in part:

“When the sentence of the court or magistrate is that the defendant be imprisoned in a workhouse, jail, or other institution, except the penitentiary or reformatory, or that the defendant be fined/and committed until such fine be paid, the court or magistrate may suspend the execution of said sentence and place the defendant on probation, and in charge of a probation officer named in such order, in the following manner:”

Then follow paragraphs one and two, which relate to the manner in which a defendant may be placed on probation.

As above stated, upon payment of fine and costs by Antonio, two days after he had been committed to the county jail, the judge of the municipal court issued an order directed to the sheriff, which order reads as follows:

“Please release Frederic Antonio sent from this court on-the 13th day of February, 1918, on charge of torture, to serve out $25.00 fine and $4.00 costs and thirty days.
“This release is made and given after good cause shown to the court that the said Frederic D. Antonio should have his sentence suspended, as provided for in Section 13711, of the General Code, and for the further reason that the court is of the opinion that the said Frederic D. Antonio should be placed upon probation for this crime.
“Witness my hand this 15th day of February, 1918.
“George FT. Gessner,
“Judge of the Municipal Court of Youngstown, Ohio.”

It was this order for release that the sheriff declined to honor or recognize, upon the theory that the municipal court had lost jurisdiction of the 'defendant, and also that the making of such order ■was the exercise of the pardoning power. It is plainly indicated in this order that it was given under said Section .13711, General Code, so that the only question to be determined here is whether or not the judge of the municipal court had such control over the judgment in said cause as he sought to exercise by said order.

The statute provides that the municipal court of the city of Youngstown shall have four terms of court each year, beginning on the first day of January and continuing for .periods of three months each throughout the year, so that it is clearly disclosed ’that the charge, sentence, commitment, and the order for release, were all made during the first term of said municipal court in this year, A. D. 1918; therefore there is no question but that the court sought to modify or suspend the sentence during the term at which the judgment was entered.

A case somewhat in point and of -some value here is Lee v. The State of Ohio, 32 Ohio St., 113. This is a case where a party was convicted of a misdemeanor and sentenced to pay a fine of ten dollars and the costs of prosecution, but the sentence was not put into execution. Later the party was taken into court on a subsequent charge, and the question arose as to the right of the.court to revise the former sentence, which had not yet gone into execution, and upon review it was held as follows in the first paragraph of the syllabus:

“Where- a court, in passing sentence for a misdemeanor, has acted under a misapprehension of the facts necessary and proper to be known in fixing the amount of the penalty, it may, in the exercise of judicial discretion and in the furtherance of justice, at the same term, and before the original sentence has gone into operation or any action has been had upon it, revise and increase or diminish such sentence within the limits authorized by law.”

It is urged by the state that this case is scarcely in point, for the reason that the sentence had not gone into execution. However, that seems not to 'have been known by the trial court which imposed the sentence, as it is disclosed by the facts that the court was not aware that its sentence had not been put into execution, and the court assumed the right to and did alter or change its former judgment upon the theory that it had originally acted under a misapprehension of the facts.

Johnson, J., speaking for the court, at page 114, quotes from Lord Coke, and it is well known this is a leading authority upon this question, somewhat ancient, indeed, but well in point here:

“It is said by Lord Coke (Co. Litt. 260a) that, ‘during the term wherein any judicial act is done, the record remaineth in the breasts of the judges of the court, and in their remembrance, and therefore the roll is alterable during that term, as the judges shall direct; but when that term is past, then the record is in the roll, and admitteth of no alteration, averment or proof to the contrary/”

The foregoing is authority for the view that the court, because the term had not yet passed, had control over its own orders and judgments, and it was held in said case that the court had a right not only to modify but to extend the sentence, and declare that the defendant, instead of paying a fine of ten dollars, should pay one of thirty dollars and costs. Bearing upon the question involved in the -foregoing is the case of Tracy et al. v. The State of Ohio, 8 C. C., N. S., 357, 358, 28 C. C., 453.

Another case ,of some, interest in this connection is Ammon v. Johnson, Gdn., 2 C. D., 149, 3 C. C., 263. This, too, was an application for a writ of habeas corpus. In the éighth paragraph of the syllabus it is held:

“Where the court' has imposed a fine upon a witness refusing to answer, and ordered her to be imprisoned until she answers and pays the fine — it is within the power of the court during the same term of court, and while the action in which she refused to answer is still pending, and after her imprisonment has commenced, to remit the fine and that part of the sentence of imprisonment relating to it.”

In the above case, in which the case of Lee v. State is cited with approval in support of the view that a court' has control of its judgments during the term and that such right exists as well in criminal as in civil cases, it is observed by Baldwin, J., as follows (2 C. D., 154, 3 C. C., 272):

“In none of the cases cited in Lee v. State, is any reason given why there should be any difference in . the extent of power of the court during the same term over a civil case or one criminal or quasi criminal.”

However, the case of Weber v. State, 58 Ohio St., 616, is practically decisive of the issue here. It is held as follows:

“In a criminal case the court has power to suspend the execution of the sentence, in whole or in part, unless otherwise provided by statute; and has power to set aside such suspension at any time during the term of court at which sentence was passed. Whether such suspension can be set aside at a subsequent term is not decided.”

In accord with the foregoing is the case of Lee, Ex parte, 16 O. D., 259, 3 N. P., N. S., 533.

A case well in point is Basset v. United States, 9 Wallace, 38, in which error was prosecuted to the judgment of the circuit court of the northern district of Ohio, and the fourth paragraph of the syllabus reads as follows:

“It is competent for a court, for good cause, to set aside, at the same term at which it was rendered, a judgment of conviction on confession, though the defendant had entered upon the imprisonment ordered by the sentence.”

In the foregoing, the defendant was charged with a misdemeanor, so that it is especially in point with the case at bar. Another is Ex parte Lange, 18 Wallace, 163, involving the same question at issue here, and -it cites the above case of Basset v. United States, in 9 Wallace. In the second paragraph of the syllabus it is held:

“The general principle asserted as applicable to both civil and criminal cases, that the judgments, orders, and decrees of the courts of this country are under their control during the term at which the}?- are made; so that they may be set aside or modified as_ law and justice may require.”

The reason for the foregoing is obvious; the court passing sentence and entering judgment', as in the instant case, should have the power, within a reasonable time, to so alter the -same as to meet the demands of justice. If for any reason, either by mistake or fraud, the court, in passing sentence, acted under a misapprehension of the facts, then the opportunity to exercise sound judicial discretion has been denied, and by every principle of right should be exercised by way of revision of sentence to secure the furtherance of justice and the due administration of the law. It is urged that this is a dangerous power; if so, the same may be said of all judicial discretion, which, if shorn of the right to modify or suspend a judgment within a reasonable time limit, would be much more dangerous. The “time limit has been held to be the term at which judgment is entered,” and this for the .chief reason that after term time a record is presumed to have been made of all orders and judgments of the preceding term; that such record is complete, and the term having been adjourned formally, or by operation of law, the record imports absolute verity and is unalterable except as specifically provided by law. The power to revise judgments during term in such cases as under discussion here, and to correct errors and mistakes, is for the protection of the defendant and the pub-, lie alike; the principles which support it rest in reason -and it comes easily within the spirit of the statute under discussion here.

It will be observed that the judge of the municipal court in issuing said order states in it, “for good cause shown.” It was a modification of the original sentence, or a suspension of a part of the same, and not the exercise of the pardoning power as urged in argument; because the defendant had complied with a part of the terms of said sentence. Therefore, .for the reasons above given, and upon the theory that a court has control over its judgments and orders during the term at which they are made, the judge of the municipal court had a right in the case at bar to direct the release of the prisoner.

The judgment is therefore reversed, and the plaintiff in error discharged.'

Judgment reversed; plaintiff in error discharged.

Pollock and Metcalfe, JJ., concur.


author: Wilson, J.

text:
    The Elmwood Place Loan & Building Co. v. Schenk et al.

      Jurisdiction — Court of appeals — Appeal — Injunction — Common pleas court — Foreclosure- of mortgage — Prior assignment for creditors by mortgagor — Proceedings in insolvency court to sell_ property — Common pleas court has jurisdiction, when.

    On May 7, 1918, plaintiff instituted suit in the court of -common pleas of Hamilton county to foreclose a mortgage on real estate of S. May 6, 1918, S made an assignment for benefit of creditors and the assignee qualified May 8, 1918. T-he assignee was made a party defendant in the foreclosure suit. After his appointment the assignee filed a proceeding in the insolvency court to sell said real estate, and' upon application of the plaintiff the assignee was enjoined from proceeding with his action. Appeal was then taken to the court of appeals. Held:

    1. That appeal would lie from the order granting the injunction, . under Section 6, Article IV of the Constitution.
    2. That by the institution of the action in the common, pleas court on May 7 the court properly and legally acquired jurisdiction of the subject-matter, and that plaintiff had the right to resort to that court since it was the only court that could give him a full and complete remedy in one suit.
    3. The common pleas court having acquired jurisdiction of the subject-matter and the parties, the subsequent institution by the assignee of proceedings in the insolvency court to sell sáid property did not oust the common pleas court of the jurisdiction it had acquired.
    (Decided November 29, 1918.)
    Appeal : Court of Appeals for Hamilton county.

      Mr. Richard Hingson, for plaintiff.

      Messrs. Burch, Peters & Connolly, for defendants.
   Wilson, J.

This case was instituted in the court of common pleas on May 7, 1918, against Elizabeth S. Schenk and William P. Schenk, her husband, to foreclose a mortgage on certain real estate in Wyoming, Hamilton county.

It appears from the record that on May 6, 1918, Elizabeth S. Schenk made an assignment for the benefit of creditors to Dawson E. Bradley, who duly -accepted and qualified as such assignee, and that on May 8, 1918, said assignee was by an entry of the court made a party defendant herein. It further appears that on June 18, 1918, plaintiff filed a supplemental petition, alleging the assignment by Elizabeth S. Schenk to Dawson E. Bradley and that said assignee had since the filing of the petition in this cause instituted proceedings in the court of insolvency of Hamilton county for the purpose of -obtaining an order from said court directing him to sell the real estate described in plaintiff’s petition; that the court of insolvency is without jurisdiction to give plaintiff herein full and adequate justice -and relief under its said mortgage in the sale of said property; and that unless restrained by the court in this cause said assignee will proceed to obtain an order and sell said real estate which will result in a pecuniary loss and work irreparable injury to plaintiff in its rights. Plaintiff therefore prayed for an injunction against said assignee from taking any further proceedings in said cause in the court of insolvency.

On June 26, 1918, the said assignee filed his answer in this cause, alleging the assignment on May 6, 1918, and his acceptance and qualification as such assignee. He further alleges that at the time of filing the petition herein, May 7, 1918, he as such assignee was possessed of the title to said real estate by reason of said assignment and that the court of insolvency was.clothed with complete jurisdiction to administer the trust; that he had filed in said court a petition for the sale of said real estate making all necessary parties defendants thereto; that the defendant, William P. Schenk, the husband of the assignor, had agreed to file an answer therein consenting to the sale of the real estate 'free of his dower right therein and asking that its value be paid him out of the proceeds of sale; that by virtue of the premises the court of insolvency is clothed with exclusive jurisdiction to administer all of the assets and to effect a proper sale of the real estate; and that by reason thereof the court of common pleas is without jurisdiction in this cause to effect the sale of said real estate and is without authority and jurisdiction to enjoin the assignee from further proceeding in said cause in the court of insolvency.

On August 7, 1918, the court of common pleas perpetually enjoined the assignee “from taking any further proceedings in the court of insolvency, or instituting or proceeding in any other manner or court for the sale of said real estate.”.

An appeal has been taken by said assignee to this court from the order of the court below perpetually enjoining said assignee from further proceeding in an effort to sell said real estate under an order of the insolvency court.

The case now comes on for hearing in'this court on the motion of the plaintiff, The Elmwood Place Loan' and Building Company, to dismiss the appeal for the reason that said assignee had given no bond for appeal and that the appeal is not in the interest of the trust, and further that it is not an order from which an appeal will lie; and also on the motion of said assignee for an order suspending the injunction below.

On an examination of the record in this case the ■court is of the opinion that an appeal will lie from the injunction order of the court below and therefore overrules the motion to dismiss the appeal.

The motion of the defendant, Dawson E. Bradley, assignee, to suspend the order of injunction granted by the court below involves the determination by this court of the question of the jurisdiction' of the court of common pleas in this case and its power and authority to so perpetually enjoin the said assignee from further proceeding in the ■court of insolvency to obtain an order to sell said real estate.

The record discloses the fact that the day after the assignment was filed in the court of insolvency, and before' any proceedings were instituted by the assignee to obtain authority to sell the real estate, this cause was instituted in the common pleas court by the plaintiff to foreclose its mortgage. To this proceeding the assignee was made a party, and in his answer filed therein he contended that the court of insolvency had exclusive jurisdiction over the property and the sale thereof, and that the court of common pleas was without jurisdiction to .entertain the proceedings. The defendant, William P. Schenk, husband of Elizabeth S. Schenk, had an inchoate right of .dower in the real estate of his wife, which could not, under Section 11123, General Code, be divested by any order of sale made by the court of insolvency without said William P. Schenk consenting that said property might' be sold free of his contingent right of dower therein. ■

It therefore appears that the court of insolvency could not, without the consent of said William P. Schenk, order a sale of said real estate free of the right of all parties in' interest in said real estate. The said William P. Schenk having ’ executed plaintiff’s mortgage, and thereby conditionally conveyed his dower right in said property, the ’plaintiff was entitled to have said property sold free of said dower right.

At the time of instituting proceedings in this-cause no proceedings had been instituted by the assignee to sell said property, and plaintiff at the time had no knowledge or assurance that William P. Schenk would consent to a sale of the property0 free of his contingent dower, if proceedings were to be instituted by the assignee.

An order or judgment for the sale of said property which fails to secure to ’ plaintiff herein the avails of the sale of all interests therein does not afford or secure to it that relief to which it is clearly entitled.

The “court is of the opinion that the jurisdiction of the subject-matter acquired by the court of insolvency by the filing of the deed .of assignment therein was not exclusive of all other courts for the' reason that the power of the insolvency court • to order a sale of the property free of all right of dower is contingent upon the consent of the possessor of such right and it is therefore so far limited or restricted as to he unable without such consent to afford that relief to the plaintiff to which it is legally and equitably entitled.

The supreme court of Ohio in the case of Dwyer et al., Assignees, v. Garlough et al., 31 Ohio St., 158, at page 160, say:

“Where a court of law and a court of equity have concurrent jurisdiction over the same subject, it frequently happens that the former tribunal, because of inadequate or limited powers, is unable to afford that relief which a party has the right to demand, and which a court of equity is fully competent to give. In such a case, a court of equity is clothed with complete jurisdiction, and if necessary to the full protection of the rights of a party, will enjoin further proceedings in the action at law.”

This court is of the opinion that by the institution of this cause in the common pleas court on *May 7, 1918, that court properly and legally acquired jurisdiction of the subject-matter of this action, and that plaintiff had the right to resort to the court that could give him a full and complete remedy in one suit. The common pleas court having acquired jurisdiction of the subject-matter and of the parties, the subsequent institution by the assignee of proceedings in the insolvency court to sell said property did not oust the common pleas court of the jurisdiction it had acquired.

The supreme court in Robinson et al. v. Williams, etc., et al., 62 Ohio St., 401, held:

“Where a suit to foreclose a mortgage is rightly commenced in the common pleas, pending an assignment in the probate court made by the mortgagor, the subsequent commencement in the same court of a suit by the assignee for the purpose of obtaining an order to sell the land as assigned property, can not be sustained against the objection of the mortgagee.”

The court of common pleas having acquired full jurisdiction possessed the power and authority to enjoin the said assignee from further proceeding with his action to sell said property.

This court is therefore of the opinion that the motion of the defendant, Dawson E. Bradley, assignee, to suspend the injunction granted by the court below should be overruled.

The only question involved in the appeal being the power of injunction as granted by the court below, and this court having determined that question, an entry may be made perpetually enjoining the defendant, Dawson E. Bradley, assignee, from further proceeding in the court of insolvency to obtain an order to sell said property.

The matters in controversy in this court having been determined, all parties hereto are relegated to the proceedings in foreclosure in the common pleas court where their rights in the subject-matters of the action can be fully adjudicated.-

Decree accordingly.

Jones P. J., and Hamilton, J., concur.


text:
    Grandin v. Millikin et al.

      Wills — Devise to four children — Share of deceased child, without issue, to vest in survivors■ — ■Executory devises — Rights of husband of deceased heir under will of wife — Partition.

    A testator by one item of his will gave and bequeathed the residue of his entire estate to his children, share and share alike, and in the next item provided that should anjr of such children die without issue the portion going to such child should vest in the surviving child or children. One child died without issue, after the death of the testator, but leaving a husband surviving, and by her will she devised all her estate to her husband. Held: That an estate in fee vested in each of the devisees, but determinable as to each child on the contingency of his or her dying without issue, and that upon the death of any of said children, without issue at the time of such death, the portion provided for such child then passed to and vested in the surviving children; and, hence, that the will of the deceased child did not operate to convey any interest to her surviving husband.
    (Decided February 15, 1918.)
    Appeal : Court of Appeals for Hamilton county.

      Mr. Robert J. Shawhan, for plaintiff.

      Messrs. Brandon •& Ivins, for Lewis Kirtley Torbet, defendant.
   Jones, P. J.

This is an action for partition, and was heard in this court on appeal.

The land sought to be partitioned is a part of the real estate devised under the will of Calista B. Eastman, and the case involves a construction of the 4th and 5th clauses of that will, which are in the following words:

“4th. I give and bequeath to my Daughters Eliza Mary Torbet, Rachel Eastman, and Sarah Elizabeth Grandin, and to my Son Harry Eastman Jr. the remainder and residue of^ all my property Real Personal and Mixed Share and Share alike.
“5th. I do hereby give, and bequeath — in case of the death of any of my said children Eliza Mary, Rachel, Sarah Elizabeth, and Harry, without issue, that the portion going and belonging to my estate to said child or children vest in the surviving child or children as above named Share and Share alike.”

There is no question but that the fourth clause of this will, if it stood alone, and were not in any way modified or changed by the fifth clause, would carry a fee simple in this real estate to each of the four children named therein. The question therefore is-what effect is to be given the fifth clause of this will.

Said testator died January 25, 1916, leaving surviving her all four of her children named in the fourth and fifth clauses, said Rachel Eastman having in the meantime married and become Rachel Eastman Millikin.

Eliza Mary Torbet died September 4, -1916, without issue, leaving a husband surviving her, and leaving a will in which she devised all her estate to her husband, Lewis Kirtley Torbet, who now claims an undivided one-fourth in the real estate described in the petition.

It is contended on behalf of plaintiff, and perhaps some of the defendants, that the effect of the fifth clause of this will was to make the fee simple estate of Eliza Mary Torbet determinable on the contingency of her dying without issue, and, on the happening of such contingency, to vest the undivided one-fourth of said real estate in the three survivors by way of an executory devise.

The part of the will under construction is very similar in its terms to that found in Taylor v. Foster’s Admr. et al., 17 Ohio St., 166, which provided:

“ ‘Secondly: I will that the children of the body of my niece, J. F., shall be my only heirs. I therefore hereby give and bequeath to the said children, namely, J. M. F., R. R. F., S. C. F., J. W. F., and C. R. F., all my estate, both real and personal.
“ ‘Thirdly: It is my will that if any of the children of my niece named in the second place should die without issue, that the share or shares of such decedent or decedents shall be equally divided among the survivors of them.’ ”

The court there held:

“That as to the real estate of the testatrix held by her in fee, there was vested in each of her devisees, in common with the others, an estate in fee simple, but determinable, nevertheless, as to each of them, on the contingency of his or her dying without issue; that on the happening of such contingency, the estate of the decedent or decedents passed to the survivor or survivors by way of executory devise; and that on the death, without issue, of either of the devisees who, under the provisions of the will, had succeeded to a portion of the share of a prior decedent, the portion or portions to which he had thus succeeded was subject to the same contingency as 'his original share, and passed to the survivor or survivors in like manner.”

This case aptly states the law applicable to the case at bar, and it was before the court again, as reported in 22 Ohio St., 255. It is one of a number of cases that lay down the same rule, which is clearly the law of Ohio. Among these cases are: Parish’s Heirs v. Ferris et al., 6 Ohio St., 563; Niles et al. v. Gray et al., 12 Ohio St., 320; Smith v. Hankinson et al., 27 Ohio St., 371; Piatt v. Sinton et al., 37 Ohio St., 353; Durfee v. Mac Neil, etc., 58 Ohio St., 238, and Walker v. Walker et al., 20 C. C., 409.

It is hardly .necessary to take up and discuss these cases, but they all seem clearly to require that the construction of the fifth clause of this will, by the court, should be that the intention of the testator was to provide that in the case of the death of any one of said four children, whenever that death might occur without issue at the time of such death, the portion provided for such child should then pass to and vest in said surviving children.

Such being the construction we are called upon to give to this clause, the interest of Eliza Mary Torbet ceased upon her death without issue; and her will did not operate to convey any interest to her surviving husband. The one-fourth interest which she previously had became vested in the other three children, to-wit, Rachel Eastman Millikin, Sarah Elizabeth Grandin and Harry Eastman; and uoon the subsequent death of any of these three without issue, the share then held by such child, together with the part received by reason of the death of Mrs. Torbet without issue, will in like manner pass to the survivors.

Reliance is placed bv the defendant Torbet upon the case of Baker v. McGrew, 41 Ohio St., 113, for a contrary construction. . This case seems to be contrary to all of the other cases found in the Ohio reports. It was decided by the supreme court commission without any reference to the other cases which have been cited above, and the decision seems to be based upon a finding of intention contrary to the general rule based upon the peculiar wording of the will then under consideration. We do not feel that it is applicable to the case at bar, and especially so when the weight of authority as above stated is considered.

It is therefore held by the court that plaintiff is now seized of an undivided one-third of the real estate described in the petition, in fee simple, determinable, however, in the event of her death without issue; and that the defendants Rachel Eastman Millikin and Harry Eastman are each^ entitled to an undivided one-third of said real estate, held upon similar title. Such a construction evidently carries out the intention shown by testator to keep her property within the ownership of these four children and their immediate issue.

As the parties are now entitled to the possession of said property in severalty, although their respective titles are not in fee simple absolute, they are'entitled, if they so desire, to a partition (Section 12026, General Code),'for which a decree may now be taken.

Decree in partition awarded.

Gorman, J., concurs.

Hamilton, J., not participating.


author: By the Court.

text:
    Hayes v. Guard et al. Hayes v. Jackson.

      Statute of limitations — Section 11224, General Code — Trespass — Damages by dog killing sheep.

    An action for damages against the owner of a dog which enters upon the premises of another and damages sheep cthereon, belonging to such person, is an action in trespass and must be brought within four years from the happening of the event, under Section 11224, General Code.
    (Decided March 25, 1918.)
    Error: Court of Appeals for Hamilton county.

      Mr. John Thorndyke and Mr. Robert A. Kramer, for plaintiff in error.

      Mr. H. J. Buntin, for Mary Guard and Andrew Jackson, defendants in error.
   By the Court.

These two actions involve the same question and were tried together.

The plaintiff- in his petition in each case alleges that the defendants owned and harbored on their premises a .dog which on certain dates entered plaintiff’s premises and did unlawfully attack, chase, bite, worry and kill certain sheep and lambs of plaintiff, for which damages are sought.

In each case the alleged trespass and injury to plaintiff’s sheep and lambs. occurred more than five years before the filing of the petition.

A demurrer to the petition in each case was sustained by the court of common pleas on the ground that the action was substantially one in trespass and must be brought within four years, under Section 11224, General Code.

1 The plaintiff in error insists that the actions are upon liability created by statute, claiming that same arise under Section 5838, General Code, and are maintainable within six years from the time they occurred.

Section 5838 is as follows

“A dog that chases, worries, injures or kills a sheep, lamb, goat, kid, domestic fowl, domestic animal or person, can be killed at any time or place; and, if in attempting to kill such dog running' at large a person wounds it, he shall not be liable to prosecution under the penal laws which punish cruelty to animals. The owner- or harborer of such dog shall be liable to a person damaged for the injury done.”

This section of the statute does not create a new liability under statute, but is merefy declaratory of the common law and dispenses with the necessity of plaintiff proving scienter in an action against the owner or harborer of a vicious dog.

The injuries were alleged to have occurred upon the premises of the plaintiff while the animal was trespassing thereon, and the actions • are clearly those growing out of trespass (Morgan v. Hudnell, 52 Ohio St., 552, 554), and are therefore under the limitation provided in Section 11224, General Code. ,

The judgment of the court of common pleas is affirmed.

Judgment affirmed.

Jones, P. J., Gorman and Hamilton, JJ„, concur.


author: Allread, J.

text:
    Leopold, Exr., v. Weaver et al.

      Wills — Descent and' distribution — Property undisposed of — Lapse of legacy — Death of legatee — Devisee of “full share” to participate, when.

    1. A devise in a will to a daughter “to be her full share and' interest in all my estate” does not bar such devisee from her share of property not disposed of by the will.
    2. This construction is not affected by the fact that the property in controversy had been disposed of by a legacy which had lapsed by reason of the death of the legatee in the lifetime of the testator.
    3. An affidavit of the testator, made contemporaneously with the will but not executed conformably to the Wills Act nor referred to in the will, can not be employed to vary or add to ■the clear dispositive terms of the will.
    (Decided August 1, 1918.)
    Appeal: Court of Appeals for Montgomery county.

      Messrs. D. W. & A. S. Iddings and Mr. George M. Leopold, for plaintiff.

      Messrs. Munger & Kennedy, for Flora Shock Hern.
   Allread, J.

This action was brought to obtain a construction of the will of John Shock. The material parts of the will are as follows:

“Item 1. I hereby devise and bequeath unto my beloved wife, Amanda Shock, all-the real estate of which I may die seized to be hers for and during her natural life, and at her death, I desire that my executor 'hereinafter named shall proceed to sell my said real estate under the order of the Probate Court, legally obtained, and that he divide the proceeds of such sale equally among the following named persons, towit: Elizabeth Shock Weaver, Frank Shock, Harvey Shock and Wilbert Shock— they being my children — all my children except Flora Shoes Hern, and I desire that my said children above named and to whom I have given the proceeds of my said real estate as set forth above shall give to my said daughter, Flora Shock Hern, the sum of One Hundred Dollars, the same to be her full share and interest in all my estate.
“Item 2. I give and bequeath unto my said wife all my personal estate to be hers absolutely. And it is my further will that, should my personal estate and the income from said realty be not sufficient to keep my said wife after my decease, in a comfortable manner, then that my said real estate may be sold in whole or in part as my said executor may deem. advisable, and the proceeds from such sale be turned over to my said wife as she may need it for her comfortable support.”

After the execution of the will, and before the death of the testator, the wife of the testator died, and the legacy provided for her benefit in Item 2 of the will lapsed. The chief question arises as to the disposition of the personalty. It is contended on behalf of the executor and the heirs, exclusive of Flora Shock Hern, that the personalty as well as the realty was intended by the will to go to the children, exclusive of Flora Shock Hern; and that Flora Shock Hern, was to be disinherited as to all of the estate of the testator except the $100 mentioned.

Counsel representing each side of the controversy have presented unusually exhaustive and able briefs. We have also been furnished with a copy of the opinion of the trial court, which contains a careful and fair analysis of the case at bar and a full review .of the authorities from our own as well as other jurisdictions.

.We think that by an almost unbroken line of decisions, beginning in the common- law and recognized and followed in most of the states, including our own, it is -established that property undisposed of by a testator descends to the heirs and distributees under the statute of descent and distribution, and that the right of an heir to inherit property not disposed of by the will is not affected by a clause in the will attempting to disinherit him. This doctrine was -established in the case of Crane v. Doty, 1 Ohio St., 279, of which the following is the syllabus:

“A testator can not, by any words of exclusion used in his will, disinherit one of his lawful heirs, in respect to property not disposed of by his will.
“Such words can not be used to control the course of descent, so as to carry the property to his other heirs.
“They can not be used to raise an estate by implication in favor of his other heirs; there being no attempt' in the will to dispose of the property or to create any interest therein.”

The opinion in this case was written by Judge Ranney and contains a full review of the authorities in England and this country.

It was there contended, as it is in the case at bar, that the English doctrine is contrary to the reason and spirit of our own laws and rules of inheritance. This argument was overruled in the opinion of Judge Ranney, and the English doctrine approved. We think the doctrine of the Crane v. Doty case is too firmly established in this state to permit its being questioned. See Mathews et al. v. Krisher et al., 59 Ohio St., 562, 574.

It is argued that the Crane v. Doty case does not apply to the case at bar for the reason that in that case the property -which the heirs took was not mentioned in the will while in the case at bar the testator made a disposition of all his property, including the property in controversy, and that, upon the face of -the will, the intention would appear to exclude the heir in disfavor from any share in the whole estate.

We think, however, that the same rule applies to property which becomes undisposed of property by the lapsing of a legacy that applies to property not mentioned in the -will. The testator is presumed to anticipate that a legatee may die during his lifetime, and that the legacy may lapse; and if the testator does not provide for that contingency in the will the property would be undisposed of and would descend according to the statute. In re Gorgas’ Estate, 166 Pa. St., 269; Gallagher v. Crooks, 132 N. Y., 338; Tea v. Mitten, 257 Ill., 624, and 40 Cyc., 1943.

Counsel cite the case of Moon, Admr., v. Stewart et al., 87 Ohio St., 549, as launching a new doctrine and a modification of Crane v. Doty. It is true that Crane v. Doty was distinguished, but we find no criticism or modification of the doctrine of Crane v. Doty. The Moon v. Stewart case involved a will the terms of which were crude, yet ' it was held to be dispositive, and all parties took under the wijl. There was no undisposed of estate.

It is contended that the special devise to Flora Shock Hern was expressed by the will “to be her full share and interest in all my estate.” Particular emphasis is placed upon the word'“all.” But it will be observed that there is no residuary or other devise to carry the personalty to the four children; it would therefore follow that the testator in the contingency of the death of his wife intended to leave the estate to- descend as intestate property.

Had the wife survived the husband the four favored children would have taken none of the personalty under the will. Thé personalty would in that event have been taken absolutely by the wife, and the portion unconsumed by her would have been subject to her disposition or pass by the statute of descent and distribution to her heirs or next of kin.

■ The four children of the testator can not claim the personalty under any dispositive term of the will. They can only claim under the statutes of descent and distribution. In doing so they invoke relief under a statute which confers title equally upon all the children. The children can not invoke the statute of descent and distribution so far as it favors them, and deny the title in favor oh Flora Shock Hern conferred by the same statute. Judge Ranney, in Crane v. Doty, says at page 283:

“The property must be disposed of upon the death of the owner. It may be disposed of by will; but if it is not, the law disposes of it to all the children alike. All dominion of the owner over it ceases with his life. To allow a testator to leave his property undisposed of, and by will to control the course of descent and distribution, would be to allow him to repeal the law of the land. It must go by devise or descent; * * * and it is impossible to conceive of an estate created by a mixture of the two.”

The claim that there is a devise by implication in favor of the four children to the exclusion of the fifth in the case at bar is also met by the opinion of Judge Ranney in Crane v. Doty.

It is also contended that the construction that the property involved in the lapsed legacy should go to all heirs should apply only to the personalty existing at the time .of the execution of the will and not to real estate subsequently converted.

It appears that Mr. Leopold prepared the will of the testator on April 7, 1911; Mr. Leopold testifies that he drew the will and the three affidavits found in the record and that John Shock made oath to his affidavit before him — the affidavit' of John Shock being dated April 7. It appears that on April 8 John Shock and his wife executed before A. W. Somers, J. P., a deed to John H. Shock for the 26-acre tract of land, and that John H. Shock and wife executed notes and mortgage for unpaid purchase money. John H.- Shock testifies that he agreed to pay $4,000 for the tract of land, that :he paid $1,000 in cash, gave notes and a mortgage for $2,000, and gave an unsecured note for $1,000. The deed was filed with the recorder on April 18, at 10:35 a. m. We think the evidence establishes the inference that this deed.must have taken effect on April 8.

The will although drawn on April 7 was not executed until April 18.' Whatever might have been the intention of the testator on April 7, the time the will was drawn, his ultimate intention must be ascertained when he signed and executed the will on April 18. At that time his personalty had been augmented by the conversion of the 26-acre tract of land into money and notes. The testator must therefore have intended that his wife should have the entire personalty held by him on the date of the execution of the will. This would include the money and notes received ten days previously from the sale of the 26-acre tract of land.

No intention appears in the will that any portion of the property devised to the wife was upon her death to pass under the terms of the will to any other person, and the personalty therefore became undisposed of property and passed under the law and not under the will.

Considerable stress is laid upon the use of the word “proceeds” as found in both Items 1 and 2 of the will.

In Item 1 the testator provides for the conversion by the executor after his death of the real ■estate of which he died seized. In Item 2 the word “proceeds” in like manner refers to that derived from a sale by the executor for the support of the wife. We find no reasonable basis for the claim that the term “proceeds” was intended to apply to real estate that he himself had converted into personalty prior to the time of the execution of the will.

It is also urged that Flora Shock Hern 'by making a claim for the $100 waived her right to participate as heir in the undisposed of property. The doctrine of election applies only where there are inconsistent rights. In the case at bar, as we construe the will, it is not inconsistent for Flora Shock Flern to claim the $100 under the will and also to ■claim as heir in the undisposed of property. The doctrine of election does not, therefore, apply.

Counsel for plaintiff urge that the court should construe the will broadly, and accomplish the purpose of the testator as reflected in his affidavit which he directed to be placed with the will.

There is no reference in the will to the affidavit, nor is the affidavit executed conformably to the Wills Act. We have considered the affidavits and the other evidence as circumstances, so far as they throw light upon the meaning of doubtful words, but we can not consider dispositive terms or expressions dé hors the will for the purpose of adding' to or controlling terms of the will. It therefore follows that Flora Shock Hern is entitled to participate with the other children in the distribution of the personalty arising ■ from the lapsing of the legacy to the testator’s wife.

Decree accordingly.

Kunkle and Ferneding, JJ., concur.


text:
    Fries v. Gannon.

      Contracts — Sale of realty — Stipulation for sewer, gas and water — Damages for breach may be recovered, when — Although stipulation not included in-deed.

    Words in a contract for the sale of realty that “it is understood that lot'has sewer, gas and water service and that all expenses for same have been paid” constitute a representation that service for each of them was supplied to the lot itself, for which all expenses had been paid; and, if the representation is not true, an action for damages may be maintained thereon, even though such representation was not included in the deed executed pursuant to the contract.
    (Decided March 25, 1918.)
    Error: Court of Appeals for Hamilton county.

      Mr. Murray Seasongood and Mr. Robert P. Goldman, for plaintiff in error.

      Mr. Robt. B. Burch and Mr. Wm. J. Stenger, for defendant in error.
   Jones, P. J.

In the municipal court, where this case originated, plaintiff in error was the plaintiff and defendant in error was the defendant. The action was brought for damages arising because of false representations made by the defendant to the plaintiff, which substantially affected the value of the property sold by her to him and the price paid for same.

There was a written contract between the parties and the representations claimed to be false are included therein. Said contract is as follows:

“Cincinnati, O., Oct. p, ipió.
“I hereby offer to purchase the following described property:
“A lot fronting fifty feet more or less on the west side of Lavinia Ave., City of Cincinnati, and running ba'ck on the north line one hundred and thirteen and eighty-nine hundredths (113.89) feet, with a width in the rear of forty-nine and five one-hundredths (49.05) feet and being lot-in-Subdivision.
“I agree to pay therefore twelve hundred dollars.
“Terms cash.
“Owner to convey by general warranty deed with release of dower. Title to be free, clear and unincumbered excepting taxes due and payable June, 1917, and thereafter, which I hereby assume* and agree to pay. It is understood that lot has sewer, gas and water service and that all expenses for same 'have been paid.
“In consideration of the services of The Fredk. A. Schmidt Co. in this matter this offer is to remain good for acceptance for - days and thereafter until withdrawn.
“George G. Fries.
“By E. M. Kahn, Agt.
“Accepted Oct. 9, 1916.
“Anna M. Gannon."

Plaintiff claims that it was represented to him that the lot had sewer, gas and water service for which all the expenses had been paid, and when he came to build it developed that’ the only service that the lot had was gas. The words of the contract which plaintiff relied upon are: “It is understood that lot has sewer, gas and water service and that all expenses for same have been paid.”

Defendant claims that the meaning of said words is that there was a sewer in the street and a water main in the street, both of which were available to plaintiff if he saw fit to make connection; and that the sewer assessment had been paid and there were no charges against the lot for the water main.

The evidence convinces the court that the proper meaning to be given to the words is not that there was a water main and a sewer in the street, but that service for each of them was supplied to the lot itself. “Service” pipes for water and gas are the branch pipes which lead from the main pipes in the street into the private property; and the same would apply to sewers. They are also sometimes referred to as house connections. But as used in the contract it must be noted that it is stated the “lot” and not the street has this service, for which all expense has been paid.

The trial in the municipal court resulted in a judgment in favor of the plaintiff for fifty dollars. This judgment was reversed by the court of common pleas upon the theory that any representation made in a contract, to be available as a claim for damages, must also be included in the deed of conveyance, and, although the deed of conveyance of this property was not offered in evidence, nor is there any testimony in regard to it in the record, that court assumed there was no reference to either sewer or water service in the deed itself and that therefore the representations made in the contract did not form the basis of an action.

The learned judge relied upon the case of Birnbryer v. Lehman, 19 N. P., N. S., 206, failing to observe that it stated as an exception to the principle announced and relied upon in this case that “the rights of the parties must be determined by the deed so given in execution of the prior agreement, unless the elements of fraud or mistake are involved.”

In the case at bar there is no question but that the defendant was either mistaken in regard to the sewer and water service, or that she misrepresented the same in her contract, and under such circumstances the case of Gleason v. Bell, 91 Ohio St., 268, would be applicable aiM must control.

The purchaser of the property was compelled to go to the expense of constructing water and sewer service pipes to connect with his property, which, under the contract, he had a right to rely upon having been already constructed .arid the expenses for the same paid.

The judgment of the municipal court is therefore affirmed, arid the judgment' of the court of common pleas is reversed.

Judgment reversed.

Gorman and Hamilton, JJ., concur.