text:
    COURTS
    [Cuyahoga (8th) Circuit Court,
    November 18, 1912.]
    Marvin, Winch- and Niman, JJ.
    S. F. Slansky v. P. W. Gaughan.
    Jurisdiction of Municipal Court of Cleveland.
    When personal service has been secured in the city, the municipal court in the city of Cleveland has jurisdiction in an action on contract against a householder and resident of another township or municipality within the county, where the amount claimed is less than $2,500.
    Error.

      Fred Desberg and A.. W. Lamson, for plaintiff in error.

      Gaughan & Collins, for defendant .in error.
   NIMAN, J.

This proceeding in error had its inception in an action brought in the municipal court of the city of Cleveland, in which the plaintiff in error was plaintiff and the defendant in error was defendant.

The statement of claim filed in the municipal court shows that the action was for the recovery of $20.50 for work and labor performed and material furnished. Personal service was obtained on the defendant within the city of Cleveland.

A motion to quash service of summons was made by the defendant on the ground that the defendant was a resident and householder of the village of Cleveland Heights, Cuyahoga county, Ohio, and not a resident of the city of Cleveland.

This motion was overruled and the defendant then filed a statement of defense, in which the same facts relied on to support the motion were set forth in the first defense. The case proceeded to trial and resulted in a judgment against the defendant for the amount sued for.

The defendant prosecuted error in the court of common pleas, and there secured a reversal of the judgment of the municipal court.

By'this proceeding in error a reversal of the judgment of the court of common pleas is sought.

The question presented for our determination is whether the defendant in the original action who, it was admitted, was a resident of Cleveland Heights village, Cuyahoga county, Ohio, and a householder therein, and not a resident of the city of Cleveland, could be held to answer the summons in the action from the municipal court, personally served on him within the city of Cleveland.

Section 6 of the act amending and supplementing an act providing for the establishment of a municipal court in the city of Cleveland, found in 102 O. L., 156, Sec. 1579-6 G. C., contains the following provision:

“The municipal court shall have original civil jurisdiction within the limits of the city of Cleveland in the following cases: 1. In all actions and proceedings of which justices of the peace have or may be given jurisdiction. ’ ’

Section 10225 G. C., provides that except as provided in the next preceding section, no householder or freeholder resident of the county shall be held to answer a summons issued ■against him by a justice in a civil matter in any township of such county other than the one where he resides, except in certain cases which are enumerated in the statute.

The cause of action sued on in the municipal court was one over which a justice of the peace would have jurisdiction and it did not fall Avithin any of the exceptions enumerated in said Sec. 10225.

It is argued in support of- the judgment of the court of common pleas that since the municipal court is given jurisdiction in all actions and proceedings of which justices of the peace have jurisdiction, it must, by implication, assume that jurisdiction, subject to all the restrictions and limitations attaching to the exercise thereof by justices of the peace, and that since the de fendant in the original action could not have been held to answer the summons of a justice of the peace issued against him in any township of Cuyahoga county, other than the one in which he resides, on the claim involved in this action, he likewise could not be held to answer the summons of the municipal court of the city of Cleveland.

This contention would be sound unless the legislature has by appropriate language expressly' conferred jurisdiction on the municipal court in cases of the kind under consideration in such a way as to indicate an intention to remove the implication suggested.

Proceeding to an examination of other provisions of said Section 6 we find that subdivision 3 thereof gives to-the municipal court original jurisdiction within the limits of the city of Cleveland of “all actions on contracts, expressed or implied, when the amount claimed bjr the plaintiff, exclusive of all costs, does not exceed twenty-five hundred dollars. ’ ’

Here is an express and unqualified conferring ■ of jurisdiction on the municipal court of all actions on contract, expressed or implied, when the amount claimed exclusive of costs does not exceed tAventy-five hundred dollars. This express provision must control any limitation or qualification on the exercise of jurisdiction over the class of cases mentioned therein that might accompany the assumption of jurisdiction solely under authority of subdivision 1 of said Sec. 6 G. C.

The action of the municipal court was on contract; the amount was within the jurisdiction of the court, and by virtue of said subdivision 3 of said Sec. 6 G. C., the court had jurisdiction thereof within the limits of the city of Cleveland, and service on the defendant within said city was properly made.

The court of common pleas erred in reversing the judgment of the municipal court.

The judgment of the court of common pleas is, therefore, reversed and that of the municipal court affirmed.

Marvin and Winch, JJ., concur.


source: Caselaw Access Project

author: NIMAN, J.

license: Public Domain

text:
    CRIMINAL LAW — HOMICIDE—ROBBERY
    [Cuyahoga (8th) Circuit Court,
    October 12, 1912.]
    Marvin, Winch and Niman, JJ.
    William Murray v. State of Ohio.
    1. Indictment not Required to Follow Statutory Definition.
    The identical words of a statute need not be used in an indictment charging an offense in violation of it, but it is sufficient if the offense charged is brought substantially within the provisions of the statute defining it.
    2. Circumstantial Evidence Definedi by Illustrations.
    In defining circumstantial evidence, it is not error for the court in its charge to the jury to use illustrations drawn from common experience or based upon familiar events in everyday life.
    3. Every Essential Link in Chain of Circumstances Proven beyond Reasonable Doubt, Sufficient.
    In a criminal prosecution, it is not essential that every fact and circumstance be proven beyond a reasonable doubt, if every essential link in the chain of circumstances necessary to prove each or any of the charges, is so proven.
    4. Failure to Define Attempt to Perpetrate Robbery not Erroneous in Homicide.
    In the trial of one accused of having committed murder while attempting to perpetrate a robbery, the failure of the court to define an attempt to perpetrate a robbery is not error when no such definition is requested.
    5. Instruction as to Assault and Battery Omitted in Homicide not Prejudicial.
    In the trial of one indicted for first degree murder it is not prejudicial error on the part of the court to fail to charge the jury that they might find defendant guilty of assault and battery, when under the charge as given the jury might have found the defendant guilty of a crime of lesser degree than that of which they did in fact find him guilty.
    6. Misconduct of Jury not Proven by Affidavit of Juror.
    Misconduct on the part of the jury can not be proven by the affidavit of one of the jurors.
    Error.

      H. M. Hagelbarger, for plaintiff in error.

      F. J. Rockwell, for defendant in error.
   NIMAN, J.

William Murray, the plaintiff in error, was indicated by the grand jury of Summit county for murder in the first degree on account of the alleged murder of one Frank Price. He was tried and convicted of murder in the second degree. A motion for a new trial was overruled and he was sentenced to life imprisonment in the penitentiary.

The indictment contains eight counts. The first count charges the crime to have been committed with a club; the second count, with the fists; the third count, with the hands and feet; the fourth count, with a razor, and the last four counts respectively charge the crime to have been committed by means of the several instrumentalities enumerated in the first four counts, while the accused was engaged in an attempt to perpetrate a robbery upon the said Frank Price.

A motion to quash the indictment was filed and overruled. A demurrer to the indictment was then filed which was also overruled.

Among the errors claimed to have been committed by the court below is the overruling of the motion to quash and the overruling of the demurrer.

The motion to quash was based upon two grounds: First, that in the last four counts of the indictment it is charged that the defendant assaulted the said Frank Price with intent to rob him, and also that the assault upon the said Frank Price was made by the defendant with the intent unlawfully and purposely to kill and murder. Second, that in each of said counts, it is alleged that the assault was committed “whilst engaged in the attempt to perpetrate a robbery,” while the exact words of the statute are “in attempting to perpetrate a robbery.”

As to the first of those grounds it is sufficient to say, that in order to charge murder in the first degree while the accused is attempting to perpetrate a robbery, the indictment must allege facts sufficient to show an attempt to commit robbery as defined by See. 12432 G. C., since the attempt to perpetrate robbery takes the place of deliberate and premeditated malice. The counts objected to do nothing more than comply with this requirement and are not open to the objection urged.

In Blair v. State, 3 Circ. Dec. 242 (5 R. 496), this question was raised, and it was there held:

“An indictment charging the crime of murder in the first degree, wherein the killing was done at the time the accused was attempting to perpetrate a robbery, is not for duplicity on the ground that in the same count it charges an assault with intent to rob. Such averments are essential in charging the crime of murder.” See also, Jackson v. State, 39 Ohio St. 37.

The second ground of objection to the last four counts of the indictment stated in the motion to quash, is also without foundation. The words “whilst engaged in the attempt to perpetrate robbery,” used in the indictment, are the equivalent of the words of the statute, “attempting to perpetrate robbery.” The identical words of the statute need not be used. It is sufficient if the offense charged is brought substantially within the provisions of the statute defining it. Loeffner v. State, 10 Ohio St. 598.

The grounds urged in support of the demurrers which was filed to the indictment are, that: first, in none of the counts is the location of the mortal wound stated; second, that in the third and seventh counts there is an allegation that the injuries were inflicted in several different ways, and the counts are objectionable because of duplicity; third, in the fifth, sixth, seventh and eighth counts, two intents are alleged and the words of the statute are not followed.

The last of these grounds has already been considered in connection with the motion to quash. An examination of the indictment discloses no basis for the other two contentions urged in support of the demurrer.

It is claimed on behalf of the plaintiff in error that the trial court committed error in embodying in the charge an illustration on the subject of circumstantial evidence. The court used this language:

‘ ‘ Circumstantial evidence is as competent as direct evidence. The weight of it, the credibility of it, is solely a question for the jury, guided by the rules of reason in common, ordinary, everyday human experience. Let me illustrate briefly the difference in a homely way. You retire at night after a day dusty, dry and hot. You sleep soundly all night, wake up in the morning, find the sky clear with a burning sun, but the streets are generally muddy, the gutters are filled with water, the grass is generally more green and very wet; you did not see it or hear it rain; yet you can say with reasonable certainty it rained last night. Your neighbor came home at midnight. He saw, - heard and felt the pelting rain. He knows with equal certainty that it rained last night. This is direct evidence. You get the distinction.”

It is claimed that this was a far-fetched and fateful illustration and well calculated to mislead and prejudice the jury.

The use by the court of illustrations drawn from common experience or based upon familiar events in everyday life has been repeatedly upheld. Illustrations which are apt and clearly made and not of such a character as to cause the jury to lose sight of the issue to be determined, are often helpful in making clear a legal proposition which would otherwise be difficult of comprehension. It is not error to employ such illustrations. Neal v. Powell, 130 Ga., 756 [61 S. E., 729]; Whitney v. Wellesley & B. St. Ry. 197 Mass., 493 [84 N. E., 95]; 38 Cyc., 1071.

We do not see how any juror could have been deceived by the illustration complained of, especially in view of the fact that it was immediately preceded by the positive instruction that the weight and credibility of circumstantial evidence was solely a question for the jury, guided by the rules of reason in common, ordinary; everyday human experience.

It is also contended that the court erred in using the following language in the charge:

‘‘Not every fact and circumstance in this case needs to be proven beyond a reasonable doubt, but every essential link in the chain of circumstances necessary to prove each or any of the charges, as claimed by the state, must be proven beyond a reasonable doubt.”

The language used in Breck et al v. State, 2 Circ. Dec. 477 (4 R. 160), is an answer to the objections urged against that portion of the charge just quoted. On page 486, Baldwin, J., said:

“ It is not true that, in order to convict a person of a crime, all those circumstances that may be material in the ease must be established beyond a reasonable donbt. It is quite possible and probable that there may be a large number of circumstances, no one of which will be established beyond a reasonable doubt, but yet the aggregate of those various circumstances, the number all pointing one way to the guilt of the accused, may be such that there can be no reasonable doubt that the accused is guilty of the crime that is charged. It is true, that when what is to be proved is supported by a chain of circumstances that are dependent one upon the other, that in order to convict of the crime on that proof each of these must be established; that is, that it is an essential fact that must be proven beyond a reasonable doubt. ’ ’

The charge in that case was substantially like the one here in the respect complained of. It was approved by this court and the decision was affirmed by the Supreme Court without opinion, Breck v. State, 21 Bull, 204.

It is urged that the court erred in not defining an attempt to perpetrate a robbery. After giving to the jury a definition of the crime of robbery the court said:

“Having the definition of robbery, you will know what it would mean to speak of an attempt to perpetrate a robbery.”

There is in Ohio no crime specifically known as an attempt to commit robbery. Having defined robbery, it is doubtful if any further explanation would have added to the understanding of the jury as to what was meant by an attempt to perpetrate a robbery, even if an additional explanation had been requested. No further explanation or request, however, was asked for and the failure of the court to give a more detailed and comprehensive instruction on this subject was not reversible error. State v. Schiller, 70 Ohio St. 1 [70 N. E. 505],

It is urged also that the jury should have been instructed that if they found that the defendant actually perpetrated the robbery, then they could not convict him under any of the counts charging him with having committed the crime while engaged in the attempt to commit a robbery. In the perpetration of a robbery, however, is involved the attempt. Even if it had been requested it would not have been proper to charge the jury on this subject in the manner indicated.

It is claimed that the court erred in omitting to instruct the jury that they might return a verdict of assault and battery if they saw fit.

If it should be admitted that such an instruction would have been proper, it does not appear that the accused was prejudiced by the omission. Under the instructions given, a verdict of manslaughter might have been returned, but a verdict of guilty of murder in the second degree was in fact returned. It is clear that the jury would not have found the defendant guilty of assault and battery when they did not exercise the right given them to find him guilty of as low a degree of crime as they might have done under the charge.

Moreover, the death of Frank Price was so clearly established and the other evidence in the case was such, that a verdict of assault and battery would not have been justified, and it was therefore not error for the court to omit any instruction that would have authorized such a verdict.

The contention is made also that the defendant could not lawfully be convicted of murder in the second degree under the seventh count of the indictment, but only of murder in the first degree.

In Lindsey v. State, 69 Ohio St. 215 [69 N. E. 126], a conviction of murder in the second degree under an indictment similar to the charge contained in the seventh count was sustained. In the opinion, page 235, it is said:

“The current of decisions in this state justifies the conclusion that an indictment, good as to murder in the first degree, embraces necessarily the lower grades of homicide, and that when this is the ease presented, the jury may, if the facts proven warrant it, acquit of the graver offense and convict of the lower.”

Another claim of error is based on the refusal of the trial court to grant a new trial on the ground of misconduct of the jury.

In support of the charge of misconduct, an affidavit of one of the jurors was presented setting forth, in substance, that after the jury had retired to their deliberations, and before a verdict had been reached, the foreman of the jury, who was the affiant, had held some communication with the bailiff in charge of the jury on the subject of whether or not the court would instruct the jury only on a point of law and not as to the penalty on the different degrees of murder. Such a communication was highly improper if made as detailed in the affidavit, but the court could not consider the charge of misconduct supported by this affidavit alone, because of the well established rule, applicable to civil and criminal eases alike, that the depositions or testimony of a juror will not be received, on a motion for a new trial, to impeach the verdict by showing misconduct or misbehavior on the part of the jury.

This rule is said to be framed “for the purpose of setting bounds to the discretion of the court in granting new trials” and to be “ founded on reasons of public policy. ’ ’ Hulet v. Barnett, 10 Ohio 459; Farrer v. State, 2 Ohio St. 54.

In Kent v. State, 42 Ohio St. 426, the rule is stated in paragraph 4 of the syllabus in the following language:

“Where a juror in a criminal case makes no statement with respect to the matter on trial until the jury retires to deliberate on their verdict, and then makes to his fellow-jurors a statement of matters alleged to be within his own knowledge, contradicting in an important particular the testimony of one of the defendant’s witnesses, and the defendant is convicted, ground is afforded by such misconduct for a new trial, where the fact is properly made to appear, but the affidavits of jurors will not be regarded for the purpose of setting aside the verdict, until misconduct of the jury is shown aliunde

We find no error, prejudicial to the plaintiff in error in any of the matters complained of, and the judgment is affirmed.

Marvin and Winch, JJ., concur.


text:
    CONTRACTS — DAMAGES—SALES
    [Summit (8th) Circuit Court,
    October 12, 1912.]
    Marvin, Winch and Niman, JJ.
    National Milling Co. v. Charles G. Craft.
    Repudiation of Entire Contract of Purchase Precludes Construction of Provision for Resale of Goods.
    When a contract for the sale of goods contains a provision that should the goods be resold the seller agrees to use care and diligence in selling in those markets that will, in his judgment, net tlie best figures, charging therefor a certain commission, such provision contemplates an act of reselling under a subsisting contract and does not apply so as to affect the measure of damages when the purchaser has repudiated the entire contract.
    Error.

      Jas. A. Ford and H. L. Snyder, for plaintiff in error.

      Auten (& Ormsby and Chas. U. Stahl, for defendant in error.
   NIMAN, J.

The action out of which this proceeding in error arises was begun by the plaintiff, the National Milling Co., in the court of common pleas, to recover damages of the defendant, Charles C. Craft, for breach of contract to purchase 750 barrels of flour.

The evidence before us in the bill of exceptions shows that on May 22, 1910, the defendant gave to the plaintiff an optional order for 750 barrels of Osota flour at $5.25 per barrel. The order was accepted by the plaintiff on October 31, 1910. By the terms of the order shipment of the flour was to be made between December, 1910, and May 1,1911. After acceptance of the order by the plaintiff and before the expiration of the time fixed in the order for shipment of the flour, the defendant repudiated the contract and refused to receive the flour or to give directions for its shipment. The plaintiff in its original action sought to recover $637.50 damages for breach of contract.

On the trial of the action the court instructed the jury to return a verdict for the plaintiff, and laid down a rule of damages, which will be considered hereafter. The jury returned a verdict of $75 on which judgment has been duly entered.

The plaintiff in error seeks a reversal of this judgment in its favor on two grounds. First, that the court erred in charging on the measure of damages; second, that the court erred in not granting the motion of the plaintiff below for a new trial on the ground that there was error in the amount of the'recovery, the claim being that the verdict is too small.

Considering these grounds of error in their order, our attention is challenged to the rule of damages, laid down by the •court in the following language:

“In assessing the damages due the plaintiff, you will follow this rule, if there was an available market for the goods in question the measure of damages is the difference between the contract price and the market or current price on May 1, 1911. If you find that there was no available market price, or if you find that there were special circumstances showing proximate damages of a greater amount, then the measure of damages is the estimated loss directly and naturally resulting in the ordinary course of events from the defendant’s failure to take the goods as agreed.”

This portion of the charge is based upon the provisions of Sec. 8444 G-. C., which prescribes the measure of damages in case the buyer wrongfully neglects or refuses to accept and pay for the goods contracted for. It correctly states the laAV of this state and is applicable to the facts in evidence unless, as is claimed by the plaintiff in error, another element of damages should have been included by reason of that provision of the contract between the parties which reads as follows:

‘ ‘ Should this flour or feed be resold, the seller agrees to use care and diligence in selling in those markets that will, in his judgment, net the best figures, charging 10 cents for one barrel commission besides other expenses actually incurred.”

The trial court took the position that this provision of the contract did not bind the defendant to any different rule of damages than that provided in the statute and we concur in this vieAV. The proAusion in question contemplates an act of reselling under a subsisting contract and does not apply where the buyer has absolutely repudiated the contract and put an end to all its provisions.

We are of the opinion that the trial court committed no error in the charge complained of.

A consideration of the second ground of error complained of leads us to the conclusion that the jury could not have applied the measure of damages given them, to the evidence in the case. The verdict for $75 is irreconcilable with all the evidence given on the subject of the market value of Osota flour on May 1,1911. The amount of the verdict indicates that the jury must have found, if the instructions were followed, that the difference between the contract price and the market value per barrel of flour of the kind named in the contract, on May 1,1911, was only 10 cents. The undisputed evidence shows the difference to have been considerably greater.

We think the verdict on the undisputed facts and under the law was insufficient in amount, being too small, and therefore, the trial court erred in not granting the plaintiff’s motion for a new trial on the ground indicated.

In Toledo Railway & Light Co. v. Mason, 81 Ohio St. 468 [91 N. E. 292; 28 L. R. A. (N. S.) 130n], it was held:

“In an action to recover damages for personal injuries, a new trial may be granted on the ground of the inadequacy of the damages found by the jury, when it appears upon the facts proved that the jury must have omitted to take into consideration some of the elements of damage properly involved in the plaintiff’s claim.”

By the fifth subdivision of Sec. 11576 G. C., when the action is upon a contract, error in the amount of recovery, whether too large or too small, is made a ground for the granting of a new-trial.

It follows that the judgment of the court of common pleas must be reversed and the cause remanded for further proceedings according to law.

Marvin and Winch, JJ., concur.


author: MEALS, J.

text:
    ESTOPPEL
    [Cuyahoga (8th) Circuit Court,
    January 13, 1913.]
    Marvin, Winch and Meals, JJ.
    Louis N. Gross v. J. R. Wiener et al.
    Acquiescence in Wrongful Conduct Insufficient to Work Estoppel.
    Acquiescence in the wrongful conduct of another by which one’s rights are invaded, in order to preclude the injured party from obtaining equitable relief to which he would be otherwise entitled, must be voluntary, with knowledge of the wrongful acts and their injurious consequences, and it must last for a reasonable length of time, so that it will be inequitable to the wrongdoer to enforce equitable remedies against him.
    Appeal.

      White, Johnson & Cannon, for plaintiff.

      Kline, Tolies & Morley, for defendants.
   MEALS, J.

Some time in March, 1909, the plaintiff, Louis N. Gross, entered into a contract with the Wiener Bros. Co., a corporation organized under the laws of the state of Ohio, of which J. H. Wiener was a principal stockholder and treasurer, for the purchase of 208 shares of the capital stock of the Intervale Fruit Co., a corporation also organized under the laws of the state of Ohio.

It is claimed by the Wiener Bros. Co. that this contract was made on March 10, and by Gross that it was-made on March 19, 1909, but in our opinion this dispute is unimportant, as the knowledge which Gross had of the facts on which he relies for relief in this action, were substantially the same on both dates.

This action is brought by Gross for thet rescission of this contract, and the prayer for relief is founded upon the following allegations of fraud and misrepresentation on the part of the defendants in the making of the contract:

First. That the farm owned by the Intervale Fruit Co., a one-half interest in which Gross sought to buy in the purchase of the stock of the company, contained 626 acres. (2) That the farm was worth $60,000. (3) That there were 50,000 trees, practically all three, four and five years old. (4) That the title of the company was clear. (5) That the Wiener Bros. Co., which owned two-thirds of the outstanding stock of the company, had been offered $27,000 for one-half of their interest. (6) That the canning factory located on the farm and belonging to it, had an estimated capacity of 30,000 No. 3 cans every ten hours. (7) That the canning factory cost $3,800 to build. (8) That the canning factory employed eighty hands. (9) That the fruit company shipped twenty-seven cars of fruit in the season of 1908. (10) That the fruit company paid dividends of 30% in 1908. (11) That orchard A contained 12,000 peach trees. (12) That orchard B contained 3,700 apple trees, and bore a full crop in 1908. (13) That orchard C was the finest plum orchard in the south, and had borne three crates to the tree. (14) That orchard D contained ten acres of land planted in pecan trees. (15) That orchard E contained forty acres of apple trees. (16) That parcel F contained twenty-five acres of strawberries. (.17) That orchard G contained 5,000 peach trees. (18) That orchard H contained 600 pear trees. (19) That orchard I contained 15,000 Alberta peach trees, and averaged one crate to the tree in 1908. (20) That orchard J contained 7,000 peach trees. (21) That orchard B contained 4,000 peach trees. (22) That orchard L contained 8,000 plum trees. (23) That parcel M contained ten acres of strawberries. (24) That orchard N contained 4,000 peach trees, and in 1908 bore a half crop. (25) That orchard O contained 20,000 peach trees. (26) That orchard P contained twenty acres of peach trees. (27) That parcel Q contained eight acres of peach trees. (28) That parcel R contained thirty acres of walnut, filbert and pecan trees.

It may be important to note that, with the exception of representations as to numbers 1, 2, 3, 4, 5, 6, 7, 8, 9 and 10, the several representations referred to the number of trees on the farm.

Representation No. 3 refers to the age of the trees on the farm, and is substantially conceded that the value of the farm rested upon these two considerations.

For reasons which need not be recounted here, representations numbers 1, 2, 4, 5, 7, 8 and 9 are practically eliminated from the case. There remains, therefore, for our consideration, representations numbers 6 and 10, and those relating to the number and age of the trees on the farm.

We therefore have before us the representations, first, referring to the number and age of the trees on the farm; second, the capacity of the canning factory; and, third, that the company paid a dividend of 30 per cent, in 1908.

The falsity of these representations is denied by the defendants, and for their further defense they allege that Gross made no claim that he had been deceived in the making of the contract until January 10,1910, when, accompanied by Mr. Neff, he went to Akron and demanded of the Wiener Bros. Co. a rescission of the contract, and that by his conduct in the interim he ratified the transaction and is now estopped to complain.

What are the facts and circumstances attendant upon this transaction?

The record is voluminous, and within the narrow limits of this opinion it will be impossible to refer to more than the principal facts of the transaction.

Gross and Wiener had been intimate friends for perhaps a dozen years. Late in J anuary or early in February, 1909, Gross called upon Wiener at his office in Akron, as had been his custom when visiting that city.

In the course of their conversation at this time, Mr. Gross said to Mr. Wiener that he was tired and contemplated going south for a short rest, and incidentally for the purpose of viewing and. perhaps buying a tract of land at Palatka, Fla., for his son, whom he wished to interest in agriculture. Wiener asked Gross how soon he intended going, saying, if you will let me know a week or ten days before you go, I am quite sure that I can go along with you, as I have been working very hard and need a little rest myself.

A short time later Gross communicated with Wiener by telephone relative to the time of their departure. At this time it was arranged that they should leave Akron for the South on Saturday evening, March 6.

At Akron, on the evening of the 6, at Wiener’s home, the conversation relative to the purchase of lands in Florida by Gross was renewed. Wiener assured Gross of his faith in southern farm lands. Among other ■ things he said to Gross, in substance, you know that I had very little money. A short time ago I invested a small amount in a small parcel of land in Georgia, the profits from which I reinvested in other lands adjacent thereto, until now, as a result of the accumulations from my original investment, I have $60,000 or $70,000 worth of farm lands in that state.

He then suggested to Gross that they stop over at his farm and “spend a day or two there,” to which Gross acceded, saying, however, that he did not think they would wish to remain there any great length of time. Wiener said, in substance: “Well, when we get there, if we find it is not as pleasant as we want it, we will not stay, and it won’t take us much out of our way to stop, as it is on the route to Florida.”

At this time Wiener had in mind the selling of the Wiener Bros. Co.’s interest in the farm, as is evidenced by the facts which will be adverted to later in this opinion.

After dinner they left Akron together and arrived at Chattanooga at 7 p. m. Sunday, March 7.

En route from Cincinnati to Chatanooga the conversation turned again to farms and farming in the south. Gross again spoke of his boy, who was then about fourteen years of age. He said he would like to educate him in an agricultural college and make a farmer out of him, as he felt that he would be much more contented at farming than h'e would be in the mercantile business, and that he intended to look at some lands at Palatka, Florida, with the intention of purchasing the same if they suited brm In the course of the conversation Wiener encouraged Gross in this intention, saying, among other things, that his was a most excellent idea.

After some further conversation on this subject Wiener said:

' “Now, Gross, what is the matter with your buying an inter-test in my farm instead of going away down to Florida ? I have $60,000 or $70,000 worth of property out there, and, as you are aware, I never had much money, but I bought a small part of the place which I now have, and with the profits bought more, until now I have 620 some odd acres of land worth more than $30 an acre. There are over 50,000 fruit-bearing trees upon it, all young, four or five years old, and a good many of them not over two years old that I put out myself, and this place has a most promising future for it. If you want your son to become a farmer, I think here is a most elegant proposition for you to go in on. Very recently I turned down an offer of $27,000 for a half interest in my holdings in the farm. ’ ’

At this juncture Wiener withdrew a packet of papers from his traveling bag, from which he handed a letter to Gross from one Byrne, in which Byrne conditionally offered $27,000 for a half interest in the farm. Wiener also showed Gross a copy of his reply to Byrne, in which the Wiener Bros. Co. offered to take $30,000 for their interest in the farm, and represented, among other things, that the property was worth from $60,000 to $65,000; that there were 50,000 trees on the place, and that practically all of them were three, four and five years old and worth at $1 a tree; also that the farm consisted of 626 acres of land worth from $30 to $35 an acre, with buildings on the Tompkins farm, which was one of the two farms composing the entire tract, worth alone $10,000.

And thus the conversation continued, off and on, until they reached Chattanooga, Wiener seemingly leaving nothing unsaid which, to his mind, would induce his friend Gross to purchase one-half of his company’s interest in the farm. Gross regarded Wiener as his friend,'and believed implicitly all that Wiener said to him on the subject of the farm and its value.

At Chattanooga they met, as if by appointment of Wiener, one Healey from Port Clinton, who was represented as a fruit buyer and who accompanied them to the farm, adding his mite at times, we suppose, in swelling the worth of the Intervale farm.

The party left Chattanooga on Monday, March 8, stopping over night at Summerville, Georgia. On Tuesday morning, March 9, they drove to the farm some five miles away. Adopting the language of counsel for the defendant, they found the peach trees in full bloom, which presented a most beautiful sight. It was perhaps ten o ’clock when they arrived at the place. An hour or more was spent in walking in the orchard and about the place, not going very far away, however, from the farm house. Luncheon was served at about 12:30 at the farm house, after which the party remained in and about the farm house, and the grounds immediately surrounding the same, until early the following morning, when they returned to Summerville.

While at the farm Wiener convinced Gross of the truthfulness of the representations which he had made to him concerning the extent and value of the farm, and of the advantages in owning a share in the same, and'had successfully induced Gross to agree to purchase a half interest in the farm for the sum of $15,000. Some debts were outstanding against the place which were pressing. Wiener explained to Gross that it was because of these debts and his need of money that he entertained at all the thought of disposing of any part of the farm, as he regarded the investment a capital one. Then, too, he added that he was glad to take Gross into partnership with him in a good thing, because of the long-standing friendship existing between them.

On their arrival at Summerville on the morning of March 10, they went to the office of G. B. Rivers, an attorney, who drafted an agreement for them, which in part is as follows:

“For and in consideration of the sum of $15,000, said Wiener Bros, do hereby transfer, assign and convey unto the said Louis N. Gross one-half of all the stock of the Intervale Fruit Co., incorporated, of Akron, Ohio, and agree to deliver to him the usual certificates for said stock bjr shares, with all and full the rights and privileges of every other shareholder of such stock of equal amount.”

And further, the agreement provided the sum of $15,000 was to be paid according to the terms of a further agreement between the said Louis N. Gross and J. Henry Wiener, president of the said the Wiener Bros. Co. What this further agreement should contain does not appear, at least, from this instrument, but we suppose reference is here made to the agreement to be and which was made later. The agreement was signed by the Wiener Bros. Co., by J. H. Wiener, treasurer, and Louis N. Gross.

For the purpose of meeting certain pressing claims against the company, as above stated, and in accordance with an arrangement made by and between Wiener and Gross at the farm on the previous day, Gross paid at this time $760, which was credited on the contract.

Having concluded their business in Summerville they continued on their journey. About March 21, they returned home, after which Gross was elected secretary and treasurer of the Intervale Co. and assumed the management of the same. He had an examination made of the title to the property; he inquired into the indebtedness of the company and in other ways set about to-familiarize himself with the business of the company.

On April 19, the transaction was finally closed. Another contract was made and signed by Gross who gave his notes to the Wiener Bros. Co. in payment of the purchase price.

In this latter contract it was recited that the Wiener Bros. Co. “this day sold and transferred to the second party 208 shares of the capital stock of the Intervale Fruit Co., one-half of the outstanding capital stock of said company, for the sum of $15,000, said transfer to take effect as March 10, 1909.”

As we have previously observed, it is contended by Gross that the true date of the contract was April 19, or the day on which this latter contract was made, and by the Wiener Bros. Co. that it was March 10. In support of his claim Gross cites the fact that on March 10, J. H. Wiener was without authority to execute a contract on behalf of the Wiener Bros. Co., later ratified his act and, for the purpose of carrying out the agreement, purchased the outstanding one-third interest of the capital stock of the company for the sum of $3,500; and, further, Gross in his testimony says, that when Rivers handed him and Wiener duplicate copies of the contract drawn at Summerville, he said to Wiener:

“This is a preliminary contract for an agreement and you must surrender your copy up to Gross when the final contract is made.”

Whatever there may be in these contentions, it seems to us, that they are unimportant here. In concluding the transaction Gross must have relied, for the most part, upon the representations concerning the farm made to him by Weiner. Doubtless he had no other knowledge of the number of fruit trees that were on the farm, their ages or their bearing qualities, and this was the all-important factor in the transaction. These representations were made to him prior to March 10, and relied #on by him in entering into the agreement of March 10, and it is a matter of no particular importance how this agreement is classified in connection with the agreement of April 19, as his knowledge on this subject had not changed, and his belief in the truthfulness of the representations was perhaps only strengthened by an incident which had occurred in the meantime.

As previously promised, sometime between March 10 and April 19, a book of views, carefully and incorrectly prepared with the obvious purpose of deceiving prospective buyers of the farm, and as if the better to confirm the belief which Gross had in the truthfulness of the representations made to him by Wiener, and lest he should become aware of the perfidy of his friend before the consummation of the transaction and the payment of the balance of the purchase price, was placed in his hands by Wiener’s order. This book is distinguished particularly by the gross misrepresentations embodied in the foot notes appended to the various views contained therein. According to these notes there were between 80,000 and 90,000 trees on the place. "While the placing of this book in Gross’ hands was doubtless intended to mislead and deceive him, we do not believe that it was the controlling factor in causing Gross to fall a victim to the fraud that was perpetrated upon him.

Without going into the evidence in detail relative to the efforts-made by Gross to ascertain whether or not he had been deceived, it is enough to say that shortly after the consummation of the transaction on April 19, 1909, he became suspicious of the truthfulness of the alluring representations made to him by Wiener. Most likely his confidence in his friend had not as yet been shaken and it is equally likely that he was reluctant to. think, much less accuse Wiener of having defrauded him. However, under one pretense and another he sent various persons to the farm for the purpose of ascertaining the true state of affairs. But he seems to have been able to get very little information from them. Likewise, by letter he sought to ascertain the true state of things relating to the farm, but without much success.

Sometime before January 1, 1910, having become convinced that probably he had been imposed upon by his unsuspected friend, he consulted counsel as to the course which he should pursue in the premises. This conference resulted in Mr. Neff going to the farm and making a careful examination and investigation of the property, and reporting the true condition thereof to Mr. Gross. Mr. Neff remained on the farm about a week and returned to Cleveland January 8 or 9. Then for the first time Mr. Gross was fully and accurately apprised of the true condition of the property; and then, also, Mr. Gross became aware for the first time of the absolute falsity of the representations made to him concerning the farm by Wiener. Until he received Mr. Neff’s report he was without accurate knowledge as to the number of trees there were on the property, or their ages, or their bearing qualities, and had only such knowledge on that subject as had been imparted to him by the false representations of his friend Wiener and as contained in the untruthful book of views placed in his hands as above stated. He now learned for the first time that instead of their being 50,000 trees on the property, as represented by Wiener, or between 80,000 and 90,-000 trees, as indicated by the book of views, there was but a fraction of that number. The investigation of Mr. Neff disclosed that there were not more than 7,100 trees under five years of age, and not more than 8,100 under seven years of age, and that the great majority of the trees that were on the place were old and valueless; also that the representations concerning the cannery, as well as the representation that the farm had paid a dividend of 30 per cent.' in 1908, were likewise unttue.

Without going more into detail as to the evidence relied on by the plaintiff in support of his contentions, we are led inevitably, from a careful reading of the record, to the conclusion that the grossest fraud was practiced upon him and that Wiener-imposed upon his confidence and shamelessly outraged his-friendship. Indeed, no attempt, or at least very little attempt, is made by the defendants to refute the claim of the plaintiff respecting the representations that were made and their falsity. That they were made, that they were material and that they were relied upon by G-ross to his injury, are seemingly irrefutable propositions. The defendants chose rather to defend against the relief prayed for by the plaintiff on the ground that the plaintiff, with full knowledge of the wrong that had been perpetrated upon him, ratified the transaction and acquiesced in his injury. As to this defense, how do the defendants stand, before a court of equity ?

Batification has been defined to be the approval by act, word or conduct of that which was improperly done, or of a wrong which was committed. In short, confirmation of a voidable act. In the language of 2 Pomeroy, Equity Jurisprudence, Sec. 917:

‘ ‘ Acquiescence in the wrongful conduct of another by which one’s rights are invaded, may often operate, upon the principles of, and in analogy to estoppel, to preclude the Injured party from obtaining many distinctively equitable remedies to which he would otherwise be entitled. In order that this effect may be produced, the acquiescence must be with knowledge of the-wrongful acts themselves and of their injurious consequences; it must bn voluntary, not the result of accident; nor of causes rendering it a physical, legal or moral necessity, and it must last for a reasonable length of time, so that it will be inequitable even to the wrongdoer to enforce the peculiar remedies of equity against him after he has been suffered to go on unmolested and bis conduct apparently acquiesced in.”

While they are distinguishable, the doctrine of laches, ratification and estoppel are closely allied. In Badger v. Badger, 69 U. S. (2 Wall.) 87, it is said:

“There is a defense, peculiar to courts of equity, founded on lapse of time and the staleness of the claim where no statute of limitations governs the case. In such cases courts of equity act upon their own inherent doctrine of discouraging, for the peace of society, antiquated demands, and refuse to interfere where there has been gross laches in the assertion of adverse rights.”

And in Parker v. Bethel Hotel Co., 96 Tenn. 252 [34 S. W. 209; 31 L. R. A., 706], it is said:

“The defense of laches does not generally apply where the situation of the parties has not been altered and one has not been put in a worse condition by the delay of the other.”

Ratification, on the other hand, means confirmation. The very substance of ratification is confirmation after conduct, and “this is enough,” says Bigelow, Estoppel, 5 Ed. pp. 456-457: “to indicate that there may be danger in using the term estoppel freely, for it is common enough at present to speak of acquiescence and ratification as an estoppel. Neither the one nor the othe1. however, can be more than part of an estoppel at best. An orto;’pel is a legal consequence, a right, arising from acts or conduct, while acquiescence and ratification are but facts presupposing a situation incomplete in its legal aspect, i. e., not as yet attended with full legal consequences. The most that acquiescence or ratification can do, and this either may under certain circumstances do, is to supply an element necessary to the estoppel and otherwise wanting, as, e. g., knowledge of the facts at the time of making a misrepresentation. But each stands upon its own grounds and must be made out in its own way, not necesarily in the way required by the ordinary estoppel by conduct.”

Applying these principles to the case before ns, we are clearly of the opinion that the record fails absolutely to disclose such facts and circumstances and such knowledge thereof on the part of Gross, as would estop him from attacking and attempting to have set at naught the contract which through fraud and misrepresentation he was induced to make. Accordingly a decree will be entered for the plaintiff as prayed for.

Marvin and Winch, JJ., concurs.


text:
    CONTRACTS — EVIDENCE—TRIAL
    [Cuyahoga (8th) Circuit Court,
    November 18, 1912.]
    Marvin, Winch and Niman, JJ.
    Maxwell-Rolf Stone Co. v. John P. Whigham.
    1. Duress by Threats to Have Son Arrested for Defalcation Avoids Guaranty by Parent.
    A contract in order to be valid and binding must be the result of the free assent of the parties making it, and when a father is coerced into signing an instrument guaranteeing the payment of the amount of a defalcation by his son, by threats of the arrest and prosecution of the son for embezzlement if such guaranty is not given, the guaranty may be avoided on the ground of duress.
    2. Defendant Has Right to Open and Close when Answer Admits Averments of Petition and Sets up New Defense.
    When’ an answer admits all the avermeilts of a petition which are necessary to state a cause of action and sets up new matter as a defense, the burden of proof rests upon the defendant, and it is his right to open and close. •
    3. Testimony as to Effect of Acts Alleged to be Duress Competent.
    In an action upon a written instrument, to which the defendant alleges his signature was secured by duress by threats to have his son arrested, the effect of the threats upon the defendants was a question of fact and it was competent for him to testify that he would not have signed the instrument sued upon if the threats had not been made.
    Error.

      W. J. Patterson, for plaintiff in error.

      Ong é Mansfield, for defendant in error.
   NIMAN, J.

The plaintiff sought to recover the sum of $10,633.22 with interest, basing its claim on a written instrument signed by the defendant, and reading as follows:

“In consideration of the sum of one dollar to me in hand paid by the Maxwell-Rolf Stone Co., a corporation of Cleveland, Ohio, I hereby guarantee the payments to the Maxwell-Rolf Stone Co. of all such amounts of money as the books of said company may, on examination and audit, show to be due it from my son, J. C. Whigham. Such audit to be made without delay and my said son to be allowed opportunity to see the books of said company at the company’s office. I to have 60 days’ time in which to pay the amount so found due after the said audit is completed; the said 60 days’ time to be taken as a further consideration for the making of this guaranty by me.”

This instrument was signed by the defendant after it had been discovered by the plaintiff that J. C. Whigham, the defendant’s son, who was in the employ of the plaintiff as agent and bookkeeper, had received and converted to his own use large sums of money belonging to the plaintiff. The amount of the shortage was subsequently ascertained by an audit to be the amount sued for. The defendant does not dispute these figures.

The defense was based upon the claim that the defendant was coerced into signing the instrument sued on by threats of the officers of the plaintiff company that unless he signed it they would at once cause his son to be arrested and prosecuted for embezzlement. He alleges that he was told that an officer of the law was waiting outside the office of the company where the transactions took place, to arrest his son, and that by reason of the fear induced by the threatened arrest of his son, he was unable to exercise his own free will, and signed the instrument.

The defendant further claims that the plaintiff agreed that if he would sign the instrument sued on, the prosecution and imprisonment of his son should not take place, and this is relied on by him to establish the illegality of the agreement.

The verdict was for the defendant. The plaintiff’s motion for a new trial having been overruled and judgment entered on the verdict, this proceeding in error is prosecuted to secure a reversal.

The law is too clearly established to require any citation of authorities, that an agreement made in consideration of a forbearance to prosecute one accused of a crime can not be enforced.

If threats made by officers of the plaintiff to prosecute the son of the defendant operated to deprive him of his free will power, and, as a result, he signed the agreement, he is not bound thereby, regardless of whether there was a. promise to forbear prosecution.

In Williamson-Halsell-Frazier Co. v. Ackerman 77 Kan., 502 [94 Pac. 807; 20 L. R. A. (N. S.) 484] it was held:

“A contract in order to be valid and binding, must bo the result of the free assent of the parties making it, and where a father is coerced into executing a mortgage to secure the payment of a defalcation of his son by threats of the arrest and prosecution of the son for embezzlement if such security is not given, the mortgage may be avoided on the ground of duress.”

This we conceive to be the law applicable to the second defense set up in the amended answer.

There was evidence tending to sustain the defenses of the defendant, and the case, in our opinion, calls for no interference with the judgment on account of the. verdict not being sustained by sufficient evidence.

It is contended by counsel for plaintiff in error that the court erred in its ruling that the defendant had the opening and closing.

By the amended answer all the essential averments of the petition entitling the plaintiff to recover, in the absence of affirmative defenses, were admitted, except possibly the amount of the shortage, and in open court at the beginning of the trial, counsel for defendant admitted this to be as stated in the petition. It was therefore incumbent on the defendant to assume the burden of producing evidence in support of his affirmative defenses. He was entitled to open and close, and the court committed no error in the ruling complained of.

Another ground of error relied on is error in the admission of evidence. The court, over the objection of the plaintiff, permitted the defendant to answer the question:

“Mr. Whigham, can you state to the jury whether if Mr. Maxwell had not made the statement to you about arresting your son, as you have related it to the jury, can you state to the jury, whether, if that had not been said, you would or would not have signed the contract in suit ? ’ ’

The answer was:

“I undoubtedly would never have signed it, by no means.”

Whether or not the act of the defendant in signing the instrument in question was the result of duress or coercion, was a question involved in one of the defenses. The influences that operated upon the mind and will of the defendant was the proper subject-matter of inquiry. The defendant might properly testify what influence controlled his act.

The jury would not be bound to take his statement on this subject as final, but it was proper testimony on a question which was to be determined by the jury in the light of all the circumstances shown by the evidence.

The same principle controls the competency of this testimony as is stated in Grever & Sons v. Taylor, 53 Ohio St. 621 [42 N. E. 829], in paragraph 2 of the syllabus, which reads as follows:

“Whether representations as to his pecuniary circumstances made by the purchaser to the seller of goods, at one time in order to obtain credit, influenced the seller in making a like sale to the same party at a subsequent time, is a question of fact; and, in such case, it is competent for the seller to testify that they did. But the fact is to be determined by the jury in view of all the circumstances; as, also, whether there was such fraud in the subsequent sale as to entitle the seller to recover the property on the ground that the information given in the first instance was false.”

No error prejudicial to the plaintiff in error has been brought to our attention, and the judgment is affirmed.

Marvin and Winch, JJ., concur.


text:
    CORPORATIONS — ERROR
    [Lorain (8th.) Circuit Court,
    July 1, 1912.]
    Marvin, Winch and Niman, JJ.
    Arthur R. Champney et al v. Leonora A. Braun.
    1. All Promoters of Corporation Liable for Fraudulent Representations of One of Their Number.
    When several persons engage in business jointly, and, to facilitate such business, use a corporate name and issue stock, and in the promotion of the scheme, false representations are made by those holding themselves out as promoters and managers of the business as to material facts of inducement and as to matters peculiarly within the knowledge of all the associates or their agents, all those engaged in the promotion of the business as associates of those making false representations are liable to those, who, relying upon such representations, purchased stock to their injury.
    2. Latitude Allowed Attorney In Argument.
    Every argument has for its aim the convincing of the jury of the justice of the cause of action or defense advocated by counsel, and considerable liberality should be allowed counsel in drawing inferences and even in indulgence in invective, when there is any support thereof in the evidence.
    Error.

      H. G. Bedington and Q. A. Gillmore, for plaintiffs in error.

      Webber & Metcalf, for defendant in error.
   NIMAN, J.

In the original action, the plaintiff, Leonora A. Braun, recovered a verdict against the defendants, Arthur R. Champney, Harry R. Edwards, Louis Schneurer and J. W. Roof, on which judgment was duly entered after the overruling of the defendants’ motion for a new trial.

By this proceeding the plaintiffs in error seek a reversal of the judgment rendered against them in the court below.

The plaintiff’s cause of action was for the recovery of damages for alleged false and fraudulent representations made by A. R. Champney, one of the defendants, claimed to have been acting not only for himself, but for the other defendants, whereby the plaintiff was induced to subscribe for $1,000 of the capital stock of a proposed corporation, the Liquid Force Co., and to pay for the same the full face value, upon the subsequent organization of the corporation.

The organization of the Liquid Force Co. seems to have had its inception at a meeting held in June, 1908, in the city of Cleveland, at which the four plaintiffs in error and W. L. Hills, who had been manager of the Moxie Co., of New York, were present. The plaintiffs in error were the owners of all the stock of the A. R. Champney Co., located at Elyria, Ohio. This company was manufacturing and selling, as one of the lines of its business, a soft drink called “liquid force.” At the meeting referred to there was some conversation between those present about organizing a new corporation to take over the business of the making of liquid force, and apparently some understanding was reached looking to the organization of such a corporation. The testimony of the various witnesses, who were questioned about the conversation that took place, was not very specific, but it is clear that some arrangement was made providing for the character of the organization of the proposed corporation and the terms of the transfer of the rights of the A. R. Champney Co. in liquid force to the proposed corporation, because subsequent to this meeting a subscription contract was prepared embodying a prospectus of the new corporation, and specifying the terms on which it was to acquire from the A. R. Champney Co. the rights of that company in liquid force. Various persons, including the defendant in error, signed this subscription contract.

On July 14, 1908, the plaintiffs in error and a daughter of one of them, met at Elyria and signed articles of incorporation of the Liquid Force Co. which were, filed in the office of the secretary of state on September 21, 1908.

The false and fraudulent representations claimed to have been made to the plaintiff below by the defendant, A. R. Champney, on which were based her right to recover were:

That the liquid force department of the A. R. Champney Co. had, for a year previous to the time plaintiff subscribed for the stock, paid a dividend of 33% ; that for the year previous to the time of her signing the subscription list, the A. R. Champney Co. had done between $25,000 and $30,000 worth of business in liquid force alone; that the business of liquid force had been fully advertised and needed no further advertising, but sold on its merits; that the secret formula and good will and trade mark of the liquid force business were worth $150,000.

At the conclusion of the plaintiff’s testimony in the court below the defendants made a motion to arrest the testimony and instruct a verdict for the defendants. It is contended here that this motion should have been granted, and the contention requires a determination of the question whether any evidence was introducd by the plaintiff tending to sustain her right to recovery.

Liability of those who engage in the promotion of a corporation, for fraudulent representations, is stated in Thompson, Corporations, 2d Ed., Sec. 727, in the following language:

“ It is made very clear by the authorities that promoters are liable for their frauds in obtaining subscriptions to the capital stock of the proposed corporations. It matters not what form the fraud assumed, if it was sufficient to influence the subscriber. The fraud of promoters in securing subscriptions may consist in representations as to the value of the property and as to the method of organization of the proposed corporation. ’ ’

The representations complained of by the plaintiff in error in her petition in the court below are of such a character as to furnish the foundation for a recovery, provided they were false, and the party making them knew them to be false, or made them recklessly, without knowledge of their truth or falsity, and provided, further, plaintiff relied upon such statements and was damaged thereby.

As to the defendant, A. R. Champney, there can be no question raised as to the evidence having been sufficient to have required a submission of the case to the jury.

It is not claimed that the other three defendants below, themselves, made any of the representations relied upon by the plaintiff to sustain a recovery, and the question remains to be determined whether these three defendants can be held for the representations made by the defendant, A. R. Champney.

The petition charged a conspiracy between the four defendants; but the charge of conspiracy was abandoned and, in the charge of the court, the jury were told that if they should find from the evidence, by a preponderance thereof, that all the defendants were the promoters of the Liquid Force Co. and that Champney as one of the promoters thereof, before the organization thereof and in furtherance of the promotion, organization and financing of the corporation, made false and fraudulent representations to the plaintiff for the purpose of inducing her to subscribe to the capital stock, knowing the same to be false, or recklessly making them, without any knowledge as to their truthfulness, and plaintiff, relying on such representations, was induced to and did subscribe for such stock and paid one thousand dollars therefor, which has become wholly lost to her, and she would not have so subscribed or paid her money for the stock but for such representations, then their verdict should be for the plaintiff against all of the defendants.

In Hornblower v. Crandall, 7 Mo. App., 220 (affirmed 78 Mo. 581), the liability of those who engage in the joint enterprise of organizing a corporation on account of the false representations of one of those engaging in the joint enterprise, was considered and it was there held, quoting from the syllabus:

“Where several persons engage in business jointly, and, to facilitate such business, use a corporate name and issue stock, and in the promotion of the scheme, false representations are made by those holding themselves out as promoters and managers of the business as to material facts of inducement and as to matters peculiarly within the knowledge of all the associates or their agents, all those engaged in the promotion of the business as associates of those making false representations are liable to those who, relying upon such representations, purchased stock to their hurt.
“That one of the associates, thus connected, is ignorant of the details of the business, will not avail him where he had the means of knowing, but trusted to his associates, and where he, with the others, received the benefit of the wrongdoing.”

There was evidence here tending to prove that all of the defendants were engaged in the joint business of organizing the Liquid Force Co. and that the sale of stock was intrusted to the defendant, A. R. Champney, and the evidencé is undisputed that all four of the defendants signed the articles of incorporation and became the beneficiaries, indirectly at least, of the subscriptions secured by Champney, including that of the plaintiff. There being evidence produced by the plaintiff tending to prove a state of facts which would render all of the defendants liable, the ease was properly submitted to the jury to determine whether such state of facts had been established by the required degree of proof and the trial court committed no error in refusing to arrest the testimony from the jury and direct a verdict for the defendant. Thompson, Corporations, 2d Ed., Sec. 114.

It is argued that the verdict is not sustained by sufficient evidence, but, in our opinion, the verdict is not so manifestly against the evidence as to justify us in interfering with the result reached by the jury who heard all the evidence in the case and had an oportunity of seeing the witnesses and determining their credibility.

It is contended that the court below committed error in permitting the trial to proceed upon the theory "of conspiracy as stated in the petition and admitting certain testimony which would be competent in support of a charge of conspiracy, but not competent upon any other theory, and then eliminating from the case, in his charge to the jury, the question of conspiracy, without also taking from the jury the evidence admitted in support of the conspiracy charge.

An examination of the evidence discloses nothing prejudicial to the defendants in the admission of evidence of the kind referred to, except that relating to statements made by Champney to Eugene Sites and the conversation that took place with reference thereto between Champney and Hills. The testimony of Hills on this subject was, however, withdrawn from the consideration of the jury and no complaint can therefore* be made of this matter. It is argued that the 'court should have expressly indicated to the jury that the cause of action based upon a charge of conspiracy was not the one upon which they were to pass. The allegations in the petition on the subject of conspiracy may be treated as surplusage and the cause of action there stated remains as one for recovery of damages on account of fraudulent representations.

The court in his charge apparently so treated the plaintiff’s cause of action and charged the jury properly on the law by which the defendants were to be held liable, if at all. This, by necessary implication, rejected any other cause of action and withdrew the same from the consideration of the jury. If the defendants desired more specific instructions on this subject they should have submitted a request to charge.

Numerous exceptions were taken by the defendants during the course of the trial to the admission of evidence on behalf of the plaintiff and the rejection of evidence offered on their own behalf. "We have examined these exceptions and, without indicating our opinion as to each one separately, the number being so great as to render this impracticable within the limits of an opinion, we have reached the conclusion that the court committed no error prejudicial to the defendants in rulings on evidence.

The plaintiffs in error complain of the special requests to charge before argument given on behalf of the plaintiff below and contend that these requests do not correctly state the law applicable to the case before the jury.

In our opinion, however, these requests embodied well settled principles of law and were appropriate to the facts in evidence and the trial court committed no error in giving the charges requested.

In the general charge, the court said:

“In order to recover for the alleged false representations made by the defendants, plaintiff must show that she was induced to make the purchase relying solely upon the false representations of the defendants, which she relied upon, and certain other information received from some other source. If it appears that the plaintiff did not trust the false statements, but acted alone upon information received from other sources, the jury should find for the defendants.”

It is argued that this part of the charge left the jury to find in plaintiff’s behalf if she not only believed that which Champney said to her, but also was influenced by other statements which she may have received from other sources without even the knowledge of Champney. "While the first sentence of this part of the charge is somewhat obscure and is certainly awkwardly worded, we think the second sentence remedies any possible prejudice that may have resulted from the other. In the second sentence, the jury are told that if it appears that the plaintiff did not trust the false statements, but acted alone upon information received from other sources, it should find for the defendants. It is a well recognized rule that all parts of a charge must be considered together and, applying this principle, it seems clear that the court did not err in this part of the charge complained of.

The plaintiffs in error also complain of other portions of the charge in which the liability of the promoters of a "corporation for the false representations of one of their number is stated and defined.

We have already indicated our views of the law on this subject and it is sufficient to say again that in our opinion the court committed no error in charging the jury on this subject. We are supported in this view by a recent ease decided by the Court of Appeals of New York, Downey v. Finucane, 205 N. Y., 251 [98 N. E. 391], Quoting from the syllabus:

“The promoter of a company, whether he be a director or not, who knowingly issues or sanctions the circulation of a false prospectus containing untrue statements of material facts naturally tending to mislead and to induce the public to purchase its stock or other securities, is responsible to those who are injured thereby. Where there are a number of such promoters all the co-adventurers are liable in damages for the fraud of an agent employed by them to effect the sale of the corporate securities, without reference to their own moral guilt or innocence. ’ ’

It is contended on behalf of the plaintiffs in error that counsel for the plaintiff below, in his argument to the jury, was guilty of misconduct. The argument objected to is set forth in the bill of exceptions, but the arguments of other counsel in the case are not before us. While it is apparent that a very generous latitude was allowed counsel for plaintiff by the trial court in the making of his argument to the jury, we do not think that there is anything in the argument that would justify a reversal of the judgment rendered in the court below. The defendants were represented by able counsel who undoubtedly presented the defense of their clients in a thorough and vigorous manner. Some parts of the argument to which the exceptions were taken were apparently called forth by statements or arguments of opposing counsel. Every argument has for its aim the convincing of the jury of the justice of the cause of action or defense advocated by counsel and considerable liberality should be allowed counsel in drawing inferences and even in indulgence in invective, where there is any support thereof in the evidence.

We can not see that there was any error committed by the trial court in permitting counsel for plaintiff to make the argument complained of.

It is complained on behalf of the plaintiff in error that the court erred in the forms of verdict submitted to the jury. No requests for any different forms were made, however, and no error can be said to exist on this account. Moreover, the fact that the jury found for the plaintiff against all the defendants indicates clearly that any additional forms of verdict submitted would not have been resorted to by the jury.

A careful examination of all the errors assigned leads us to the conclusion that no error prejudicial to the plaintiffs in error was committed, and the judgment is, therefore, affirmed.

Marvin and Winch, JJ., concur.


author: POLLOCK, J.

text:
    ASSOCIATIONS-COURTS — STATUTES
    [Cuyahoga (8th) Circuit Court,
    May 10, 1912.]
    Niman, Dustin and Pollock, JJ.
    Judge Dustin of Second Circuit and Judge Pollock of Seventh Circuit Sitting in Places of Judges Marvin and Winch.
    State ex rel Cleveland Law Library Assn. v. Peter J. Henry etc.
    1. Later and Special Statutes Prevail.
    When two statutes are irreconcilable the one last enacted must prevail, and where there is a conflict between a general law and a special act the special act will prevail.
    2. Law Libraries not Entitled to Fines Collected in Municipal Courts.
    Section 3056 G. C., giving to law library associations fines and penalties collected in police courts in certain cases, does not give to such associations the fines and penalties collected in those cases in a municipal court, which has been created by special act, and to which jurisdiction of all cases formerly exercised by police courts has been transferred, when the act creating the municipal court expressly directs the clerk of that court to pay all moneys collected to the city treasurer.

      A. A. A A. II. Bernia, for plaintiff.

      E. K. Wilcox, for defendant.
   POLLOCK, J.

This is an action in mandamus brought in this court by the relator, the Cleveland Law Library Assn., against Peter J. Henry, clerk of the municipal court of Cleveland, for a writ in mandamus to compel the defendant, Mr. Henry, to pay over to the library funds of this city, the amount collected as penalties for offenses and misdemeanors, as provided by See. 3056 G. C.

They allege in their petition that the relator, the law library association, is duly incorporated under the laws of Ohio and has its location in the city of Cleveland, and that, in short, it is entitled to the funds provided for in this section and that the defendant has refused to pay to it such funds.

This involves a construction of the section referred to, together with certain sections providing for the municipal court of this city.

. The legislature of the state of Ohio in the year 1910 passed an act creating a municipal court for the city of Cleveland (101 O. L., 365), giving to it certain concurrent jurisdiction with the court of common pleas, and also the jurisdiction of justices of the peace. The act further provided for judges of that court and the clerk of the court, and such other judicial machinery as was necessary to carry out the intent of the legislature.

The legislature of 1911. increased the jurisdiction of this court by giving to it the jurisdiction of all misdemeanors and of violations of the city ordinances, which the police court of this municipality had theretofore exercised.

It is claimed that transferring the jurisdiction of the police court to another court having a different name would not destroy the plantiff’s right to funds under the section above referred to.

We fully agree with counsel that the mere change of name of the court would not affect the distribution of any funds which might come into the hands of the officers of that court, and if this were all the change, affecting the fines coming into the hands of the clerk, that was made in providing a municipal court for this city, we would have no trouble in arriving at the construction of this statute claimed by the plaintiff. But the act creating the municipal court went further than this, and, by Section 30 of that act, provided for the distribution or payment of the funds that should come into the hands of the clerk of this court by virtue of his official position. It provides as follows:

‘ ‘ He shall pay over to the proper parties all moneys received by him as clerk; he shall receive and collect all costs, fines and penalties, and pay the same quarterly to the treasurer of the city of Cleveland, and take his receipt therefor, but moneys deposited as security for costs shall be retained by him pending the litigation. ’ ’

This statute specifically directs that all costs, fines and penalties shall be paid by the clerk quarterly to the treasurer of the city of Cleveland. If he obeys this requirement of the statute, it is certain that he can not pay to the library association under Sec. 3056 Gf. C. That section requires the clerk of the police court to pay a certain proportion of the fines and penalties assessed and collected for offenses and misdemeanors to the library fund. If we say that a change in the name of the court that now has jurisdiction to hear these cases, changed in no way the rights provided by statute of parties to share in the distribution of funds, we have here a direct contradiction in the statute. The clerk, if both of these statutes apply to him, can not obey the requirements of both of them. If the clerk of this municipal court is controlled by both of them, the two statutes are irreconcilable, and where two statutes are irreconcilable, the latter must prevail State v. Halliday, 63 Ohio St. 165. And, further, the act creating the municipal court is a special act and creates the office of clerk, the official position held by the defendant, Henry, and this act provides for the distribution of the funds coming into the hands of the clerk by virtue of his office. Where there is a conflict the special act should prevail over the general.

For this reason we feel that the clerk of the municipal court can not be ordered to pay these funds to the law library association.

No doubt the result reached is to be regretted by all parties, for it would be greatly to the benefit of the officers of the municipal court and city to have free access to the books of this law library, but we feel that we could not place such a construction on this statute without reading into it an exception which it does not contain, and that the proper way to remedy this oversight in the statute, if it is an oversight, is through the legislature.

The writ is denied, and plaintiff’s petition dismissed.

Niman and Dustin, JJ., concur.


text:
    HEALTH
    [Lorain (8th) Circuit Court,
    October 14, 1912.]
    Marvin, Winch and Niman, JJ.
    Nemis Metropolis v. Elyria (City).
    Board of Health ■ Regulation Forbidding Sale of Ice Cream in Public Places except in Certain Receptacles, Valid.
    An order or regulation of a city board of health, forbidding the sale of ice cream on highway or public grounds of the city unless contained in sealed or locked cans or other containers approved by the board of health, is a valid exercise of police power, and is constitutional.
    Error.

      Fauver & Bice, for plaintiff in error.

      G. B. Findlay, for defendant in error.
   NIMAN, J.

The plaintiff in error was convicted in the mayor’s court of the city of Elyria on a charge of selling ice cream in quantities less than a pint and not contained in sealed or locked cans, or other containers, approved by the board of health of the city of Elyria. On a review of the case on error in the court of common pleas, the judgment of the mayor’s court was affirmed. A reversal of the judgment of the court of common pleas, affirming the judgment of the mayor’s court, is sought in this proceeding.

The offense of which the plaintiff in error was convicted was a violation of Sec. 8 of an order and regulation of the board of health of the city of Elyria, regulating the manufacture and sale of ice cream within the said city. The section in question reads as follows:

“No person, by himself or by his servant, agent or employe, or as a servant, agent or employe of another person, partnership or corporation, shall sell or offer for sale on any of the highways or public grounds within the said city of Elyria, any ice cream, nut ice cream, fruit ice cream or French ice cream, except in quantities of at least one pint, and contained in sealed or locked cans or other containers, approved by the board of health of the said city of Elyria. ’ ’

The evidence contained in the bill of exceptions shows that the plaintiff in error sold ice cream cones upon the streets of the city of Elyria in quantities of less than one point, which were not contained in sealed or locked cans or other containers approved by the board of health of said city. This fact is conceded and it is admitted that the conviction of the plaintiff in error must be sustained unless said Sec. 8 is reptfgnant to the constitution, and therefore void.

It is contended on behalf of the plaintiff in error that Sec. 8, above quoted, is unconstitutional and void because it is an unnecessary and unreasonable regulation and not related or adapted to the ends sought to be attained. The power delegated to boards of health to provide measures for the protection of the public health is very broad. It is practically eo-extensive with the necessities that may arise for the purpose indicated. The authority for the exercise of such power is referable to the police power inherent in the state. The only limitation on the exercise of the police power of the state, whether for the preservation of the public health, or for any other purpose, is stated in State v. Boone, 84 Ohio St. 346 [95 N. E. 924; 39 L. R. A. (N. S.) 1015n], as follows:

“To justify the state in thus interposing its authority in behalf of the public, it must appear, first, that the interests of the public generally, as distinguished fi*om those of a particular class, require such interference; and second, that the means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals. ’ ’

The purpose of Sec. 8 of the order and regulation of the board of health of the city of Elyria was undoubtedly the protection of the health of its inhabitants, and especially of its children, which might be endangered by the unsanitary conditions attending the sale of ice cream in the streets of the city, and on other public property, as well as the danger of the contamination by flying dust incident to eating ice cream in the streets. This is a perfectly legitimate subject for the exercise by the board of health of its power.

Reference to the language of See. 8 discloses that two things are forbidden by it. First, the sale of ice cream in quantities of less than a pint; and, second, the sale of ice cream in any form except in sealed or locked cans or other containers approved by the board of health.

It seems clear that the second part of the section under consideration is a perfectly proper regulation and one against which no constitutional criticism can be aimed. It is appropriate to the purpose in view and is adapted to the end sought and there is nothing unreasonable in requiring those who wish to sell ice cream on the city streets and other public property to take the sanitary measures provided in the regulation to protect their ice cream from exposure to the dust and to prevent other undesirable conditions which might prevail in the absence of such a regulation. As we understand it, this is conceded and the attack directed against the prohibition of sales in quantities of less than one pint.

In our view of the case, the facts before us do not call for a decision on the validity of this particular part of Sec. 8. The two parts are separable and where such is the case that which is constitutional and valid can be upheld. The principle is the same in dealing with a regulation like this as that which has been repeatedly applied by the court in upholding that part of a statute which is not repugnant to the constitution and rejecting the unconstitutional part where the two parts are not so inseparably connected in subject-matter and so related to each other as to give rise to a presumption that a part would not have been enacted without the whole. Little Miami Ry. v. Greene Co. (Comrs.), 31 Ohio St. 338; Gibbons v. Catholic Institute, 34 Ohio St. 289.

Even, therefore, if that part of Sec. 8 dealing with the quantity of ice cream that may be sold in the streets or on public grounds of Elyria should be held void, that part dealing with the sale of the article in closed cans or retainers would stand as a valid regulation.

The facts show that the plaintiff in error sold ice cream cones that were not contained as required by the regulation, and regardless of the validity of the other part of Section 8, his conviction must be sustained.

The judgment of - the court of common pleas is affirmed.

Marvin and Winch, JJ., concur.


text:
    BUILDINGS — COVENANTS—ESTOPPEL
    [Cuyahoga (8th) Circuit Court,
    January 23, 1912.]
    Marvin, Winch and Niman, JJ.
    Rosa Haas v. Molly Strauss.
    1. A Porch is Part of Building and Subject to Building Restrictions.
    A porch, built upon a brick foundation, roofed and permanently attached to the whole width of the front of a house, is an integral part of the building within the meaning of a building restriction in a deed providing that all buildings shall be erected not less than a certain distance back from the line of the street.
    2. Plaintiff not Estopped from Enforcing Building Restriction because of Trifling Violation of It by Herself and Neighbors.
    The fact that plaintiff and other lot owners have violated the building restrictions in an allotment by building porches nearer to the street than is permitted by such restrictions, will not, when such violations are slight, estop her from enjoining the construction by her neighbor of a porch of a different type from those theretofore built and which would seriously obstruct her easement of light and view.

      S. N. iWeiiz, for plaintiff.

      J. J. Sullivan and Sol. Edgert, for defendant.
   NIMAN, J.

It appears from tbe agreed statement of facts filed in tbis case, and the evidence, that the plaintiff is the owner of snb-lot No. 126 in Southern & Chamberlain’s allotment in the city of Cleveland, which sub-lot has a frontage of fifty feet on the north side of Hawthorne avenue. The defendant is the owner of sub-lot No. 125 in the same allotment on the same side of Hawthorne avenue and adjacent to plaintiff’s property on the east. That at the time Southern and Chamberlain allotted this property and sold lots therein, the following restriction was imposed upon all the lots:

“And as a further consideration of the following described property, no buildings are to be placed nearer to the street than twenty feet from the front of the lot line. ’ ’

That the defendant, at the time this action was started, had under way the construction of two buildings on her lot, the main portions of which were placed back from the lot line the distance required by said restriction, but the two porches of which, as originally planned, encroached upon the restricted portion of the lot; that these porches sought to be constructed by the defendant extended to a distance of about eight feet into the restricted space, so that the outside line of the porch piers and the porches proper would be eleven feet two inches from the inside lot line; that the porches which the defendant was about to construct were to be of brick, attached to a part of the building proper, each being twenty feet in width and eight feet in depth, and extending from four feet below grade through to the roof, the roof on the porch being an extension of the roof of the building, and the piers to said porches being two feet by two feet. It appears further that the porches of numerous other houses on the same side of the street encroach somewhat upon the restricted part of the lots; that the plaintiff’s own porch stands about 89-100 of a foot over the restricted area.

Since the buildings proper are placed twenty feet from the lot line and in conformity to the restriction, it becomes necessary to determine whether or not the building of the porches upon the restricted space is a violation of the restriction. In Ogontz Land & Improve Co. v. Johnson, 168 Pa. St. 178 [31 Atl. 1008], this question was before the court, and it was there held:

“A porch built upon a brick foundation, roofed and permanently attached to the whole width of the front of a house and projecting to within seven feet of the fence line, is an integral part of the building within the meaning of a building restriction in a deed providing that all buildings upon said lots shall be erected not less than fifteen feet back from the fence line. Such a structure is a violation of the building restriction, notwithstanding the fact that it is open at the sides and front. ’ ’

1 Jones, Law of Real Property and Conveyancing, Sec. 760, states the law in this language:

“The piazza or porch is ordinarily a constituent part of the building, and is within the terms of a restriction which prohibits the placing of a building less than a certain number of feet from the line of a street. ’ ’

In Bader v. Walther et al, 18 Dec. 299 (5 N. P. 497), the syllabus is as follows:

“1. The word ‘house’ as used in a building restriction, means the building, and includes a porch which is an integral and substantial part of it.
“2. An injunction will lie against the construction of a house by an adjoining property owner when the enjoyment of his neighbor’s property is substantially affected thereby as to view, light and air, although his neighbor may have submitted to encroachments upon portions of the street remote from him and not affecting his enjoyment, in violation of a general restriction.
“3. One buying land for the purpose of building a house upon it is held to have fully contemplated, not only the restrictions in his deed, but such surrounding conditions as were obvious and material.”

It seems clear that the porches which the defendant was about to erect on her lot, as shown by the plans in evidence, were a substantial and integral part of the buildings, and that their erection as contemplated would constitute a violation of the restriction. It remains, therefore, to be considered whether the restriction imposed upon the lots of the plaintiff and defendant and on the other lots in this allotment, has been broken to such an extent that the plaintiff is prevented from insisting on an observance of such restriction by defendant.

In McGuire v. Caskey, 62 Ohio St. 419 [57 N. E. 53], it was held:

“Where neighboring proprietors of urban lots are bound by covenant in a deed under which both held not to erect buildings within a prescribed distance from the street upon which the lots abut, either is entitled to an injunction to enforce the observance of the covenant by the other.
‘ ‘ That relief will not be denied to a plaintiff because he has erected a porch in front of his residence and within the prescribed distance from the street, when the purpose of the covenant is to secure and preserve the desirability of the street for private residence, and the porch does not substantially interfere with the easements of neighboring proprietors for light, air and view. ’ ’

In Brown v. Huber, 80 Ohio St. 183 [88 N. E. 322; 28 L. R. A. (N. S.) 705n], part 2 of the syllabus states the law in the following language:

“Where such covenant or restriction is still of substantial value to the dominant lot, notwithstanding the changed condition of the neighborhood in which said lot is situated, a court of equity will restrain its violation.”

5 Pomeroy, Equity Jurisprudence, 3 ed. Sec. 280, contains this statement of the law:

‘ ‘ An injunction will not be granted if the plaintiff has acted so as to make its issuance ineqtdtable. A person who seeks to enforce such a covenant must permit no such breach of the stipulation as will frustrate all the benefit that would otherwise accrue to the other parties to the agreement. One who stands by and acquiescés in repeated violations by the defendant and others, can not be heard to deny the right; and where a party has violated the restrictions in his own deed, he can not enjoin violations by others, even though the covenant violated by the plaintiff is entirely different from that disregarded by the defendant; but where the violations of the plaintiff are not substantial, and violations by other parties have been in places remote from plaintiff, an injunction will not be denied. ’ ’

The encroachment of the plaintiff’s own porch upon the restricted space is very slight. The violations of the restriction by the other lot owners on the same side of the street, according to the evidence, are not such as to materially interfere with the enjoyment of the plaintiff’s property, and do not offer any substantial obstruction to the easement of neighboring proprietors for light, air and view. The most pronounced violation is that of the Wertheimer property, which is a distance of 295 feet from the property of the plaintiff, and does not, therefore, materially injure the plaintiff in the use and enjoyment of her property. None of the porches are more than one story in height. The porches which the defendant desires to build are two stories in height, with large pillars and roofs, which, on the original plans, were an extension and a part of the main buildings and which, even according to the modified plans, are still of such a character that the porches, if completed, will seriously interfere with the plaintiff’s view, and with her easement for light and air. The proposed violation of the restriction by the defendant is of a different kind than any that exists on any other portion of that side of the street. We think there is no such equity arising against the plaintiff from the fact that her house and the houses of others have been located and built in the manner described as to render it unjust for her to seek relief by injunction. Her enjoyment of her property has not heretofore been substantially affected by the violations of the restrictions that have occurred on that side of the street. The restriction is still of value to her and should be enforced, to the extent that the court deems equitable to both parties, unless she has been guilty of such laches in seeking relief as will now estop her from asking intervention of a court of equity. We find that she has been guilty of no such laches. The construction of the porches has proceeded only so far as putting in the foundations to the brick work and stone capping on the first story, and it appears that a portion of this work was done after the defendant was notified of the filing of this action. The plaintiff acted with all reasonable dispatch in seeking relief, and is not estopped from maintaining her action.

The enforcement of building restrictions in deeds is somewhat a matter of discretion with the courts, Russel v. Harpel 10 Circ. Dec. 732 (20 R. 127), and in the exercise of this discretion, the plaintiff is granted an injunction enjoining the defendant from building the porches according to her present plans.

But the defendant will be permitted to build her porches in the position planned so far as the location within the restricted portion of the lot is concerned, to the height of one story, and will be permitted to place floors over the tops of these porches, but no roofs, and she will be required to use pillars of moderate size, and to leave the sides and fronts of the porches open, except as to the placing of railings around the floors of the porches.

A journal entry may be prepared and submitted to the court, together with plans for the porches as indicated, for the approval of the court, which plans will be made a part of the journal entry in the ease.

Marvin and Winch, JJ., concur.