text:
    MECHANICS’ LIENS — CONTRACTS— PRINCIPAL AND AGENT,
    [Cuyahoga (8th) Circuit Court,
    January 26, 1905.]
    Hale, Marvin and Winch, JJ.
    O. T. Lapham v. Harry Ransford et al.
    1. Statute Must Be Strictly Construed as to Mechanics’ Liens.
    While liberality should be exercised in construing the rights of parties under a mechanic’s lien when it has once attached, the statute must be strictly followed in securing the lien.
    2. Affidavit Must Show Material Furnished Under Contract With Owner of Some Interest in Land Charged With Lien.
    The affidavit for a mechanic’s lien must show that the material was furnished to, and under a contract with, the owner of some interest in the land, in order to bind the interest of such owner.
    3. Account Required to Show Relation of Debtor and Creditor Between Landowner and Lienholder.
    The account attached to the affidavit for lien must show the relation of debtor and creditor between the owner of some interest in the land and the person claiming a lien upon the interest of such owner.
    4. Contract to Execute Deed to Vendee Upon Erection of Certain Houses on Land Does not Constitute Him Agent of Vendor to Order Materials Therefor.
    A contract for the sale of land which provides that the vendor will execute a deed of said land to the vendee upon the erection by said vendee of certain houses on said land and the payment of the purchase price, does not, of itself, constitute the vendee the agent of the vendor, to order materials for the erection of said houses, nor render the interest of the vendor liable to a lien in favor of the person furnishing such materials on the order of the vendee.
    Appeal.
    Frank Higley, for plaintiff, cited:
    Laning E. L. 5107 (E. S. 3185); Standard Oil Go. v. Sowden, 55 Ohio St. 332 [45 N. E. Eep. 320]; Bulloch v. Horn, 44' Ohio St. 424 [7 N. E. Rep. 737]; Dakin v. Lecklider, 10 Circ. Dec. 308 (19' R. 254); 2 Warvelle, Vendors See. 867; Mutual Aid Bldg. & L. Co. v. Gashe, 56 Ohio St. 273 [46 N. E. Rep. 985]; Fox v. Oldwin, 1 Dayt. 137; Iron Co. v. Murray, 38 Ohio St. 323; Harper v. Bank, 54 Ohio St. 425 [44 N. E. Rep. 97]; Bohn Mfg. Co. v. Eountze, 30 Neb. 719 [46 N. W. Rep. 1123; 12 L. R. A. 33]; Henderson v. Connolly, 123 111.'98 [14 N. E. Rep. 1; 5 Am. St. Rep. 490]; Hill v. Gill, 40 Minn. 441 [42 N. W. Rep. 294]; Moore v. Jackson, 49 Cal. 109.
    Bemis, Zizelman & Calfee, for defendants:
    Whether a material man may file a mechanic’s lien against the owner of property for material purchased by a contractor, etc. McCune v. Snider, 9 Circ. Dee. 572 (18 R. 24); Feike v. Railway, 7 Circ. Dec. 652 (14 R. 186); Palmer v. Tingle, 55 Ohio St. 423 [45 N. E. Rep. 313]; Mutual Aid Bldg. & L. Assn. v. Gashe, 56 Ohio St. 273 [46 N. E. Rep. 985]; Pinkerton v. LeBeau, 3 S. Dak. 440 [54 N. W. Rep. 97]; McGinnis v. Purrmgton, 43 Conn. 143.
   WINCH, J.

■ This case was heard on appeal and involves the validity of a mechanic’s lien which plaintiff claims upon certain premises in this city.

It appears that defendant, Lester A. Cobb, trustee, was the owner of said premises and on July 16, 1900 entered into a contract with defendant, Harry Ransford, by the terms of whieh it was agreed:

“Whereas, the party of the second part is desirous to build on said lots, it is hereby agreed by and between said parties to this agreement, that upon the erection of three houses upon said lots by second party said party of the first part will execute a deed to second party for said lots, and will take a second mortgage upon said lots for the sum of $1,400, said first mortgage being $3,000 upon said houses and lots. Said second party agrees with party of first part to pay the sum of $75 when deed is signed on each house and $75 when second payment is made on loan on each house, second mortgage to bear interest at the rate of 6 per cent per annum and to run three years; interest payable semiannually.”

Ransford entered into possession of the premises, put in two foundations and erected the frame and roof of one house, buying his lumber of plaintiff. He then abandoned his contract, failed to pay for the lumber and absconded. The partially completed house 'became racked and three feet out of plumb, before Cobb ever saw it.

Plaintiff says that Ransford came to him to buy lumber, representing that he owned the premises in question; Cobb’s name was not mentioned and no inquiry was made as to the real ownership of the property.

To secure a mechanic’s lien for the value of lumber furnished by plaintiff, which he testifies went into this, house, plaintiff filed an affidavit which reads as follows:

“December 22, 1900.
“The State of Ohio, Cuyahoga County, ss:
“O. T. Lapham, being duly sworn, says that he is doing business as The O. T. Lapham Co. and that the account hereto annexed marked, ‘Exhibit A,’ is a true and correct account of the labor performed, and materials furnished by affiant doing business as aforesaid to and for the said Lester A. Cobb, trustee, at said county, and that the prices thereof set forth in said account are just and reasonable and that there remains due and unpaid thereon the sum of $192.
“That said labor was performed and said materials were furnished at the time in said account mentioned, under and by virtue of an unwritten contract between said Harry Ransford, agent, who in making such contract was acting for said Lester A. Cobb, trustee, and O. T. Lapham by which said lumber and materials were to be paid for when delivered.
‘ ‘ That said labor was performed and said materials were furnished, in good faith,’ and for. the purpose of constructing certain dwelling houses standing on a lot of land hereinafter described.
“And this affiant says that the said L. A. Cobb, trustee, was,, at the time said contract was entered into, and said labor was performed, and said materials were furnished, the owner of said buildings and that said buildings are situated upon a certain lot of land owned by said Lester A. Cobb, trustee, and on which land said Harry Ransford has or claims an interest and which said lot of land is described as follows, to wit: Situated in the city of Cleveland, county of Cuyahoga and state of Ohio, and known as sublots 156, 157, 158 and 159 in the Madison Park allotment as shown by plat recorded in Yol. 23 of Maps, page 14, Cuyahoga county records.
“And this affiant further says, that said O. T. Lapham is the legal owner of the above mentioned claim.
“The said O. T. Lapham claims a lien in the premises,
“0. T. Lapham.
‘ ‘ Sworn to by said O. T. Lapham, before me, and by him subscribed in my presence, this twenty-second day of December, a. d. 1900.
“Frank Higley, Notary Public.”

The account attached is headed: “Lester A. Cobb, trustee, by Harry Ransford, agent, Prescott street. Bought of the O. T. Lapham Company.”

Under this affidavit plaintiff claims a lien both against the interest of Cobb and the interest of Ransford in said premises. The proof shows no right in Ransford to act as agent of Cobb, unless it may be gathered from the provisions in the contract between them regarding the erection of houses upon Cobb’s lots.

1. Does this affidavit create any lien as against Ransford’s interest in the premises ?

We think not, for while liberality is exercised by courts of equity, in construing the rights of parties under a mechanic’s lien when it has once attached, the statute must be strictly followed in securing the lien. McCune v. Snider, 9 Circ. Dec. 572, 575 (18 R. 24).

Laning R. L. 5100 (R. S. 3184) provides that one who furnishes labor or material “by virtue of a contract, express or implied, with the owner, part owner or lessee, of any interest in real estate or the authorized agent of the owner, part owner, or lessee of any interest in real estate, shall have a lien * *" * upon the interest, leasehold or otherwise, of the owner, part owner, or lessee in the lot of land, ’ ’ etc.

Laning R. L. 5107 (R. S. 3185) provides that such person shall file an affidavit “containing an itemized statement of the value and amount of such labor, machinery or material, * * * a copy of the contract, if it is in writing, a statement of the amount and times of payments to be made thereunder and a description of the land, ’ ’ etc.

Reading these two sections together, it is manifest that the affidavit must show that the material was furnished to, and under a contract with, the owner of some interest in the land, in order to bind the interest of such owner.

This affidavit does not even hint that there was any contract between plaintiff and Ransford or that materials were furnished to Ransford. On the contrary it specifically charges that the materials were furnished “to and for the said Lester A. Cobb, trustee,” under any by virtue of an unwritten contract between said Harry Ransford, agent, who in making such contract was acting for “said Lester A. Cobb, trustee” and plaintiff; that “said Lester A-. Cobb, trustee, was, at the time said contract was entered into and said labor performed, and said materials furnished, the owner of said buildings and that said buildings are situated upon a certain lot of land owned by said Lester A. Cobb, trustee, and in which said land said Harry Ransford has or claims an interest.”

What interest Ransford had in the land, if any, does not appear and is immaterial; there is no claim of a contract with Ransford or of materials furnished to him.

The account attached to the affidavit does not show Ransford as a debtor, and we believe that to be necessary. Bender v. Stettinius, 10 Dec. Re. 186 (19 Bull. 163).

We hold that plaintiff, by reason of the defects in the affidavit mentioned, has not perfected a lien against any interest of Ransford in said premises. Filberl v. Davis, 4 Dec. Re. 496 (2 Clev. L. Rep. 265; 4 Bull. 629).

2. Has plaintiff established any lien against Cobb’s interest in said premises ?

The affidavit is sufficient for the purpose, if the proof establishes the fact that Ransford was agent for Cobb in ordering the materials furnished.

The only proof tending to establish such agency is the contract between Cobb and Ransford in which it is provided that Cobb will execute a deed to second party (Ransford) “upon the erection of three houses upon said lots by second party. ’ ’ It will be noticed that Ransford does not agree to erect any houses.

We think the proper rule to be applied in such cases is laid down by the Supreme Court of South Dakota in the case of Pinkerton v. Le Beau, 3 S. Dak. 440 [54 N. W. Rep. 97], where the authorities are collated and it is held:

“A stipulation in a contract for the sale of land, that it was understood between the parties that the vendee should erect a building upon the land, does not, of itself constitute the vendee the agent of the vendor, within the meaning of the mechanic’s lien law, nor authorize the vendee to subject the land of the vendor to a lien for material furnished for a building contracted for by such vendee. ’ ’

But we are cited to several cases holding a contrary doctrine.

In the case of Bohn Mfg. Co. v. Kountze, 30 Neb. 719 [46 N. W. Rep. 1123; 12 L. R. A. 33], it appears that the vendor had agreed to advance the vendee the sum of $2,200 towards the erection of the building, and that money was deposited in bank to be expended on checks of the vendee, countersigned by the vendor .and accompanied by estimates of the architect.

In the case of Henderson v. Connelly, 123 Ill. 98, [14 N. E. Rep. 1; 5 Am. St. Rep. 490], there was an agreement that when the vendee had expended $325 in the erection of a suitable dwelling house upon the premises, the vendor would advance the further sum of $875 to aid in the completion thereof.

In carrying out an agreement to advance money a vendor might very easily so conduct himself as to be in no position to deny his vendee’s agency.

The case of Hill v. Gill, 40 Minn. 441 [42 N. W. Rep. 294] can be distinguished from the case at bar only on the one point that in the case cited the vendee “covenanted and contracted” to commence work upon a dwelling house and complete it within sixty days, while Ransford made no agreement to build a house.

But, considering all these cases irreconcilable with the conclusions we have arrived at, we think they all depend upon a theory of the equities of the case which does not obtain in Ohio. For instance, in the Minnesota case it is said:

“She (the vendor) attempts to retain the property, much enhanced in value, through plaintiff’s materials, without paying for the improvements. To permit her to do so would be an imposition. ’ ’

That could not be said in Ohio. The vendor in this state, can only claim the balance of the unpaid purchase price due him from the vendee; the mechanic has a lien on all value added to the premises by the vendee, over and above the amount due the vendor under the contract. Mutual Aid Bldg. & Loan Co. v. Gashe, 56 Ohio St. 273 [46 N. E. Rep. 985].

Under the equitable doctrine established in Ohio by this ease for the benefit of material men and mechanics dealing with the vendee of land in possession under an executory contract to convey it, we think such material men are fully protected, and we are not disposed to enlarge the scope of the law of implied agency and thereby extend the benefits of the statute beyond the reasonable construction put upon it by the Supreme Court of this state in the case cited.

Finding that plaintiff failed to secure a lien upon any interest of Ransford in the premises and that he has failed to prove one against Cobb’s interest, the petition is dismissed.


source: Caselaw Access Project

author: DONAHUE, J.

license: Public Domain

text:
    INSURANCE — DEED—TRUST.
    [Fairfield (5th) Circuit Court,
    September 23, 1904.]
    Voorhees, Donahue and McCarty, JJ.
    Ohio Farmers' Ins. Co. v. G. W. Black.
    Trust Deed Will Defeat Insurance Policy Stipulating Against Change of Title.
    The execution of a trust deed of realty for the purpose of paying off certain mortgage incumbrances, with the understanding that* the residue was to be returned, is a sufficient alienation to avoid a policy of insurance on such property which had, as one of its stipulations, a provision that “This ’ policy shall become void if any change * * * take place in the title to, interest in, occupancy or possession of the subject of insurance or the interest of the insured therein or any part thereof, whether by legal process or judgment or voluntary act of the insured, and the company shall not be liable on the policy.”
    Error to Fairfield common pleas court.
    Lee Elliott and William Davidson, for plaintiff in error.
    J. S. Sites, for defendant in error.
   DONAHUE, J.

The defendant in error recovered a judgment in the court below against the plaintiff in error on a policy of insurance, one of the provisions of which policy is:

“This policy shall become void if any change other than death of insured take place in the title to, interest in, occupancy or possession of the subject of insurance or the interest of the insured therein or any part thereof, whether by legal process or judgment or voluntary, act of the insured, and the company shall not be liable upon the policy. ’ ’

On the part of the company it is claimed that the plaintiff below parted with the title to this land by an absolute conveyance which is offered in evidence. In answer to that contention the plaintiff says that this was merely a trust deed for the purpose of paying off certain mortgage incumbrances, the residue to be returned to Black after the property was sold and debts paid.

The question arises whether this conveyance is a violation of the terms of the policy or not. ¥e think it is. The terms of this policy do hot provide only that a sale of the property would render it void. If that were true, we should find there was no sale of the property and that the transfer of the property did not affect the title of the owner to the beneficial interest in the property. There is no rale under the authorities as we find it, but there is a change of title.

In May, Insurance See. 289, it is said that if the deed upon its face contains the provisions that are here attempted to be grafted upon it by parol evidence, it would nevertheless be a change of title. But we do not place our opinion upon that authority, but upon the case of Blackwell v. Insurance Co. 48 Ohio St. 533, 539 [29 N. E. Rep. 278; 14 L. R. A. 531; 29 Am. St. Rep. 574].

In that case a man owned a stock of goods upon which he took out a policy of insurance, which provided against a sale of his interest therein. Later he sold an undivided half interest to a partner.

The court held that Blackwell could recover against the insurance company, though the policy there considered had in it the condition against the sale or transfer of the property because the entire interest was not transferred. But the Supreme Court does here announce the law to be that a change of title, no matter whether it conveys all beneficial interest or not is within the provisions of this policy. We think there is ■ some difference between this case and Ohio Farmers’ Ins. Co. v. Waters, 65 Ohio St. 157 [61 N. E. Rep. 711], but Ohio Farmers’ Ins. Co. v. Waters, supra, is very strong authority showing the extent to which the Supreme Court has gone in giving effect to those contracts and conditions avoiding the policy. The Supreme Court holds that where a debtor transfers his property to a trustee or assignee for the payment of his debts, he violates the conditions of the policy and it becomes void. True in that case he parts with the control over the property and has only the residue thereof, yet in this case after parting with the title for the purpose of the payment of the debt the agreement of the trustee to take it and pay the debt can be enforced by the creditor. The owner of the property could not come into court and compel the reconveyance of this trust estate unless he first paid the debt. The only thing he would have left in this property would be the residue remaining in money. The title in law is irretrievably and absolutely gone and as said in Ohio Farmers’ Ins. Co. v. Waters, supra, all that remains to him is that portion of the fund arising from the sale of it not exhausted in the payment of the debts.

The judgment of the court below will be reversed'with costs and the ease remanded.

Voorhees and McCarty, JJ., concur.


text:
    APPEAL — AMENDATORY LEGISLATION.
    [Fairfield (5th) Circuit Court,
    September 23, 1904.]
    Voorhees, Donahue and McCarty, JJ.
    Newton Peters v. George Harman, et al.
    1. Appeal Is Continuance oe Original Action — Amendatory Statutes Regulating Appeal Controlled by Dan. R. L. 98 (R. S. 79).
    An appeal is a continuance of the original action, and, under favor of Lan. R. L. 98 (R. S. 79), statutes relating thereto, in force at the time an action, is commenced, is not affected by subsequent amendatory legislation, unless it is expressly so provided.
    2. Laning R. L. 8736 (R. S. 5227) Controlled in Operation by Lan. R. L. 98 (R. S. 79).
    The provision of the amendatory act of March 25, 1902 (95 O. L. 66; Lan. R. L. 8736; R. S. 5227), requiring a party who desires to appeal his cause to the circuit court to file a written notice of such intention within three days after the judgment or order is entered by the trial judge on his docket, does not apply to actions pending at the time of its enactment. The appeal of such actions is governed by the statutes in force at the time of their commencement, ahd not by subsequent amendatory acts passed before judgment is rendered, unless expressly so provided.
    Motion to dismiss appeal.
    C. W. McCIeery and William Davidson, for plaintiff.
    M. A. Daugherty, for defendant.
   DONAHUE, J.

This case is submitted to us on a motion to dismiss the appeal. The judgment of the court below was entered June 4, 1902, and an appeal was attempted from that judgment. There was no notice filed in writing of an intention to appeal and it is claimed by counsel for the motion that under the statute, as it then read, this was absolutely necessary, and that a failure to file such motion is fatal to the appeal and the same must be dismissed.

Laning R. L. 8736 (R. S. 5227) was amended March 25, 1902 (95 O. L. 66). In that amendment it is provided that a party desiring to appeal his cause to the circuit court shall, within three days after the judgment or order is entered on his docket by the trial judge file a written notice of such intention, and, within thirty days after the entering of such judgment or order by the trial judge, give an undertaking with sufficient surety, to be approved by the clerk of the court or a judge thereof, as hereinafter provided.

This section was amended to read as I have just stated on March 25, 1902, and the decree was entered June 4, 1902, so it is contended by council for the motion that this section as it was amended March 25, 1902, applies.

The original section as it stood before this amendment provided that a party desiring to appeal his cause to the circuit court shall within three days after the judgment or order is entered, enter on the records notice of such intention, and within thirty days after the entering of such judgment or order on the journal of the court give an undertaking with sufficient surety, to be approved by the clerk or a judge thereof, as hereinafter provided.

With the contention of counsel touching the requirements of the statute as amended, we are in perfect accord. Under that section as amended, the filing of a separate notice in writing is absolutely indispensable to perfect the appeal, and the entry that was put upon the journals of the court is not sufficient under the amended statute as it read on June 4, 1902. But it is contended that the original Lan. R. L. 8736 (R. S. 5227) as it read at the time of the bringing of this suit controls. That is the only question in this case.

Laning R. L. 98 (R. S. 79) provides that where a statute is repealed or amended, such repeal or amendment, shall in no manner affect pending actions, prosecutions, or proceedings, civil or criminal, and when the repeal or amendment relates to the remedy, it shall not affect pending actions, prosecutions or proceedings, unless so expressed; nor shall any repeal or amendment affect causes of such action, prosécution or proceedings, existing at the time of such amendment or repeal, unless otherwise expressly provided in the amending or repealing act.

Now if this appeal comes within the provisions of Lan. R. L. 98 (R. S. 79), then of course the statute as it existed at the time of the commencement of the action would control. If it does not, then Lan. R. L. 8736 (R. S. 5227) as amended March 25, 1902 controls.

The entry (after the decree of the court is entered) is as follows :

“Now and here plaintiff gives notice of his intention to appeal this case to the circuit court of Fairfield county, Ohio, and the court fixes the amount of the appeal bond at $200.”

, That notice is sufficient under the old statute if the appeal is to be perfected under that statute..

The case in Young v. Shallenberger, 53 Ohio St. 291 [41 N. E. Rep. 518] seems to cover this question, but it is distinguished in this that at the time of the passage of the act there in question the right of action then had already accrued to the plaintiff in error; that is, judgment had been rendered against him and he was entitled to his cause of action as it then existed. It is contended that if judgment had not then' been rendered it would have been- different; that no rights could have accrued until judgment had' been entered and consequently Young v. Shallenberger, supra, is no assistance to us in determining this case.

In Thompson v. Street Bldg. Assn. 7 Circ. Dec. 68 (13 R. 250), the court reviews Lan. R. L. 98 (R. S. 79) at some length; it shows the nature of a petition in error and the difference between a proceeding in error and an appeal and on page 70 we find this language:

“But an appeal is very different from a proceeding in error, as is shown by the decision of the Supreme Court referred to by Judge Smith in announcing the decision of the general term in that case. The former is a continuance of the original action, and it would be affected by any statute relating to the remedy in such eases, only if it was stated therein, that it would affect pending actions.”

This case holds directly that an appeal is a continuance of the original action, that it would not be affected by ■ any statute changing or modifying the laws relating to it, unless it expressly provided that it should do so as required by Lan. R. L. 98 (R. S. 79).

. * That case is persuasive with us, but we think the case of Travelers Ins. Co. v. Myers, 59 Ohio St. 332 is practically decisive of the question. I read from the syllabus:

“Section 6710 Rev. Stat. as amended April 25, 1898 (93 O. L. 255), does not affect the jurisdiction of this court to review a judgment of a lower court, where the right to prosecute error in this court existed at the time the amendment took effect. ’ ’

On page 333 the court say:

“It is evident that if Sec. 3 had been omitted, the act, being one relating to the remedy, would not have applied to this case; for by Lan. R. L. 98 (R. S. 79), no amendment or repeal relating to the remedy, applies to an existing cause of action, prosecution or proceeding, unless otherwise expressly provided in the amending or repealing act. ’ ’

This amendment that we are. now considering (amendment to Lan. R. L. 8736; R. S. 5227) does not provide that it shall apply to pending-cases. Therefore from the doctrine in Travelers Ins. Co. v. Myers, supra, it is evident that it cannot apply to this case. In other words this act 1 is an act relating to the remedy, and therefore the law as it existed at the time the action was commenced, instead of the law at the time the judgment was rendered, shall govern. That being true we think the notice of appeal was properly given and the motion to dismiss the appeal will be overruled.

Voorhees and McCarty, JJ., concur.


author: JELKE, J.

text:
    WILLS — TRUSTS—CONSTRUCTION.
    [Hamilton (1st) Circuit Court,
    May, 1903.]
    Giffen, Jelke and Swing, JJ.

      Harriet C. Robbins v. Amor Smith, Admr., et al.
    1. Rule fob Interpreting Wills.
    A will is to be interpreted by its express provisions, and when no ambiguity exists in such express provisions, the mere fact that we cannot understand why the testator so provided, or such provision is contrary to what we might have expected, does not justify putting a construction on said will different from the plain import of the words therein used.
    2. Construction of Will Devising Income of Property, Accompanied by Power of Appointment by Will of Legal Title, With Remainder Over, in Default of Appointment.
    The will of Edward Harwood provided that two-thirds of his estate should be equally apportioned amongst his children, but should not be paid over to them, but be safely invested for their behoof; and the annual income arising to each child be subject to her control, whether married or unmarried, and in no instance should the husband of any such child 'have any power or control over the principal or interest of such share; nevertheless, each to have power and authority to will and devise her portion as she shall see fit; in case of either dying without leaving a will her portion to be equally divided between her children who may survive her. or if she have no children surviving her. then the said portion to be paid to the testator’s children who may survive her share and share alike. One of the three children is now dead:. Held, the trusts created therein and the provisions creating them are not mutually repugnant, and where the objects of such trusts are still possible and have not been fully accomplished, the same will not be terminated by decree in equity, notwithstanding the desire and contract of those presently interested.
    3. Want of Trustee Does not Defeat Trust.
    Equity will not let a trust fail for want of technical words in its creation or for want of a trustee.
    4. Life Estate Only Devised.
    Under said will the children took but an estate for life in the body of the estate.
    5. Effects of Child Dying Intestate.
    In the event of any of said children dying intestate and failing to exercise the power given in the father’s will, her share passes in accordance with the provisions of the father’s will.
    6. Marital Trust Merely not Created.
    The reference to husbands did not create a marital trust merely.
    7. Equity Continues Trust During Life of Cestui Que Trust.
    Equity never continues a trust for the benefit of the trustee, but inasmuch as the trusts herein cannot sooner be deemed completely fulfilled, the trust as to each child will be continued during her life.
    Appeal from common pleas.
    J. W. Warrington and C. B. Matthews, for plaintiff.

      Harlan Cleveland and Albert Bettinger, for'Amor Smith and Mr. French:
    “Second. The remaining two-thirds of my estate shall be equally apportioned amongst my children, but shall not be turned over to them, but shall be safely invested for their behoof; and the annual income arising to each child shall be subject to her control, whether married or unmarried, and in no instance shall the husband of any such child have' any power or control over the principal or interest of such share; nevertheless, each of my children shall have full power and authority to will and devise her portion of said inheritance in such manner as she shall see fit.
    ‘Third. In case of either of my children dying without leaving a will, then her portion of said inheritance shall be equally divided between her children who may survive her, or if she have no children surviving her, then the said portion shall be paid to my children who may survive her, share and share alike.”
    The construction heretofore placed upon the will by all the parties interested in it is the correct one, and should not be disturbed. Mathews v. Meek, 23 Ohio St. 272; James v. Pruden, 14 Ohio St. 251; Baxter v. Bowyer, 19 Ohio St. 490; Davis v. Boggs, 20 Ohio St. 550; Johnson v. Johnson, 51 Ohio St. 446 [38 N. E. Rep. 61] ; Greene v. Greene, 1 O. S. C. D. 679 (38 Bull. 205) ; affirmed, without report, Greene v. Green, 57 Ohio St. 628; Howe v. Fuller,’ 19 Ohio 51; Stableton v. Ellison, 21 Ohm St. 527, 533 ; 2 Jarman, Wills 856.
    Supplemental proceedings and termination of the trust by agreement. Matthews v. Davis, 39 Ohio St. 54; Yoeman v. Easley, 36 Ohio St. 416; Wagner v. Bailway, 38 Ohio St. 32; Bullock v. Kilgour, 39 Ohm St. 543; O’Kill v. Campbell, 4 N. J. Eq. 13; Kent v. Armstrong, 6 N. J. Eq. (2 Halst. Ch.) 559; Cantine v. Browne, 46 N. J. Law 599; Martin v. Fort, 83 Fed. Rep. 19; Wilks v. Burns, 60 Md. 64.
    R. P. Hargitt, for Mrs. French.

       Affirmed by Supreme Court, February 28, 1905, 50 Bull. 94.

   JELKE, J.

The last will and testament of Edward Harwood is as follows:

“In the name of God, Amen: I, Edward Harwood, of the city of Cincinnati, Hamilton county, state of Ohio, being in moderate health and of sound mind and memory, do make and declare this my last will and testament, hereby revoking and making null and void all wills and testaments by me heretofore made:
“First. I give, devise and bequeath to my dear wife, Julia Anne Harwood, the third part of all my estate of every‘kind, whether consisting of real estate, moneys, debts, merchandise, furniture, or of whatever other description and character said property may be.
“Second. The remaining two-thirds of my estate shall be equally apportioned amongst my children, but shall not be paid over to them, but shall be safely invested for their behoof; and. the annual income arising to each child shall be subject to her control, whether married or unmarried, and in no instance shall the husband of any such child have any power or control over the principal or interest of such share; nevertheless, each of my children shall have full power and authority to will and devise her portion of said inheritance in such manner as she shall see fit.
“Third. In case either of my children dying without leaving a will, then her portion of said inheritance shall be equally divided between her children who may survive her, or if she have no children surviving her, then the said portion shall be paid to my children who may survive her, share and share alike.
“Fourth. I do hereby appoint my said wife, Julia Anne Harwood, executrix of this my last will and testament, so long as she shall remain unmarried.
“Fifth. I do hereby appoint William Henry Brisbane, of Arena, Wisconsin, and Frederick Dallas, of Cincinnati, to be the advisors of my said wife, hereby requiring her to obtain their consent and cooperation as to the general management of my estate.
“Sixth. In the event of the marriage or death or refusal or disability of my said wife to act as exeeutrix, I hereby appoint the said William Henry Brisbane executor of this my last will and testament; and in the event of the death or refusal to act of the said William Henry Brisbane, I do hereby appoint the said Frederick Dallas executor of this my last will and testament.
“In witness whereof, I have hereunto set my hand and seal at Cincinnati aforesaid this twenty-fourth day of August, a. d. eighteen hundred and sixty-seven.
“Edward Harwood (L. S.)
“The above instrument on one sheet of legal cap paper was now here subscribed by Edward Harwood, the testator, in the presence of each of us, and was at the same time declared by him to be his last will and testament, and we as witnesses sign our names hereto as witnesses.
“J. F. Larkin,
“J. W. Weakley, Jr.
‘‘Codicil.
“I do hereby nominate, constitute and appoint my much esteemed friend, David Munroe Marsh, my executor to assist my dear wife in the management of my estate and the execution of my last will and testament, and in case of her decease or disability for him to continue the management and execution of the same.
“And I dp hereby declare this to be a codicil to my last will and testament, which bears date the twenty-fourth day of August, eighteen hundred and sixty-seven (1867). And I do hereby direct that it shall be received and considered as part of my said will.
“Witness my hand and seal, dated at Cincinnati, this twenty-eighth day of April, eighteen hundred and seventy-four.
“Edward Harwood (L. S.)
“Codicil.
“I, Edward Harwood, the within named testator, do hereby make and publish this codicil to my last will and testament bearing date the twenty-fourth day of August, a. d. 1874, in the manner following, to wit:
“Whereas, I hold a certain note of hand for the sum of six thousand three hundred and fifty-seven 96-100 ($6,357.96) dollars made by John W. Langley, dated January 1, 1872, and payable one day after date, now I do hereby release and discharge the said Langley, his heirs and legal representatives, from the payment of any sums of money due and owing me at the date of my death, or that may become due after my death, for and on account of interest due on said note, and I direct my executors to credit all moneys heretofore or that may hereafter be paid by the said Langley to the liquidation of the principal of said note, and when the sum of $6,557.96 has been paid, I direct the note to be delivered to said Langley, and I further request and instruct my executors not to press or harass the said Langley for the payment of said note, trusting, however, that the said Langley, should he ever be able, will promptly pay all sums then unpaid upon said note on account of interest, which payment shall be left to his sense of honor and to his individual judgment.
“In witness whereof, I have to this codicil annexed to my said will set my hand and seal the eighth day of May a. d. 1874, to the end that the same may be annexed to and made a part of my last will and testament.
“Edward Harwood (Seal.)
“I, Edward Harwood, having on the fourth day of October, 1875, duly made and executed my last will and testament therein constituting, Julia Harwood, my then wife, the executrix therein, and my said wife .having since the date thereof departed this life, leaving me her surviving, therefore, being still of sound mind, do hereby substitute in place of my said deceased wife to be the executor of my last will and testament my son-in-law, Maynard French, and do hereby declare it to be my will and intent that as in said will declared in respect to my said wife that he be not required to give bond or surety as such executor, the same being dispensed with, and I do hereby declare this to be part of my said last will and testament and to take effect as such.
“In witness whereof, I sign and hereby execute these presents.
“ E. Harwood (Seal.) ’ ’

We are required to construe this will in order to determine what estates Harriet C. Robbins, Gertrude Gordon and Adaline French, who were Edward Harwood’s daughters and only children and heirs at law, took thereunder.

The ability, learning and research of counsel on both sides of this case command our admiration and respect. In the oral discussion some one said that the court below had not given adequate consideration to the canons of construction, the principles of interpretation and rules of law to which its attention had been called, but had brushed them all aside, saying that this will was too clear for argument. In sympathy with and in defense of the court below, we want to say that in a ease of this kind there is nothing so mind satisfying as a natural, unaided first impression. After reading the long, scholarly briefs of counsel and examining the many authorities cited, after looking at different parts of the will in the light of almost every known rule of construction, the mind is grateful to have a clear first impression to hark back to. The value of these natural impressions in the interpretation of documents, and especially of a will not drawn by a lawyer, is shown in an article on “The Theory of Legal Interpretation,” by Professor Oliver Wendell Holmes, now United States justice, in 12 Harv. Law Rev. 417:

‘ ‘ Thereupon we ask, not what this man meant, but what those words would mean in the mouth of a normal speaker of English, using them in the circumstances in which they were used, and it is to the end of answering this last question that we let in evidence as to what the circumstances were. * # * So in the ease of a will. It is true that the testator is a despot, within limits, over his property, but he is required by statute to express his commands in writing, and that means that his words must be sufficient for the purpose when taken in the sense in which they would be used by the normal speaker of English under his circumstances.”

Let us, then, on this basis and before examining the cases, and without having recourse to rules, see what impression we get from the will itself.

“The remaining two-thirds of my estate shall be equally apportioned amongst my children.” “Apportioned,” that is, divided, cut up into portions, parts or shares, and each part or share to be set off to a particular child, and if the will stopped there, we would say given over absolutely to such child; but the will immediately puts a stop to this latter idea by saying, “but shall not be paid over to them.”

After the apportionment into shares, if these shares are not to be paid Over to the children, what is to become of the shares? This forbidding their payment to the children is a negative provision and does not tell where these shares are to remain or where to go.

“But shall be safely invested for their behoof.” This tells what use is to be made of the shares and what is to be done with them, but does not téll where the title of the shares is to rest or who is to safely invest them. The word, “behoof,” means benefit, or use; and here we get the first suggestion of a trust. A trust is not lightly to be engrafted upon an estate, and yet if the testator intended to create a trust, although he has failed to do so in express terms and neglected to name a trustee as such, equity will not let, a trust fail for want of a trustee. With this suggestion we look further in the will to see if we can find the testator had anybody in mind who should act as trustee. In item fourth he names his wife, Julia Anne Harwood, executrix, so long as she shall remain unmarried. Here is an intimation that the duties to be performed by his widow would in all probability be of longer duration than the mere administration upon the estate. That testator had something of this kind in mind is further, manifested by item fifth: “I do hereby appoint William Henry Brisbane, of Arena, Wisconsin, and Frederick Dallas, of Concinnati, to be the advisors of my said wife, hereby requiring her to obtain their consent and co-operation as to the general management of my estate. ’ ’ His widow was to have more to do than simply administer the estate according to law and subject to the direction of the probate court; she was to have the management of the estate in such a manner as to need the consent and co-operation of his two friends. This idea persists and is made more obvious in the first codicil, where he speaks of the “management of my estate” and the “execution of my last will and testament.”

Whether testator had or had not in his mind a trust in any technical sense, it seems manifest that whatever holding or withholding there was to be of the shares so apportioned, was to be by the same person appointed executrix or executor, and that person was to do the safely investing for his children’s behoof. This, then, made a trust, and we must look further into the will to see how the whole estate is divided up, how much of the estate is vested in the trustee and what is the nature of her trust and what estate is given to the cestuis que trustent.

“And the annual income arising to each child shall be subject to her control, whether married or unmarried.” From this it seems that it was the testator’s intention that so far as his daughters’ interest or relation to his estate, they were to occupy exactly the same position, and always provided the income was paid to his children, it made no difference whether they were married or unmarried. It would seem as though this language would rebut the'suggestion that this was only a marital trust. “And in no instance shall the husband of any such child have any power or control over the principal or interest of such share.” The expression, “principal or interest,” is a layman’s expression of emphasis, as we would say, “he is to let it alone, ‘lock, stock and barrel.’ ”

We now come to a most significant part of item second: “Nevertheless, each of my children shall have full power and authority to will and devise her portion of said inheritance in such manner as she shall see fit.” There is one thing made perfectly apparent by this clause of item second and the whole of item third, and that is, that be the estates what they may, each child’s respective portion was to be there intact at the time of her death. Now this condition could only be assured by limiting the childrens’ estates to life estates. Of course when you have said this, you have said it all, because it follows if a child made a will, her devisee would take title by appointment in her will from Edward Harwood. If the child failed to make a will, then the portion passed as directed in item third of Edward Harwood’s will.

Of course the intention of the testator is controlling in the interpretation of wills. Both sides start their arguments with this principle. It would encumber an opinion to cite the Ohio cases on this point, as anybody can find them collated under the head of “Devise” in Bates’ Digest; and, after all, we have the classic of Smith v. Bell, 31 U. S. (6 Pet.) 68 [8 L. Ed. 322]. But we must not forget that it is the intention expressed in the will which must prevail. We are not interested in an intention independent of that which testator has tried to express. Townsend v. Townsend, 25 Ohio St. 477. As Mr. F. Vaughn Hawkins has said in his essay on this subject, and incorporated by Professor Thayer in his“Preliminary Treatise on Evidence at The Common Law,” on page 602 of this latter work:

“It cannot be too often repeated that legal interpretation is not a mere ascertaining of the intent; it acts only by putting a meaning com sistent with the intent upon the words.
“Intention is not a mere inchoate act of the mind, that which a person intended to do, but took a step towards doing, but something which as a mental act was complete, and which the writer endeavored to express by the words he made use of, although those words in fact express his meaning more or less imperfectly.”

Hence it is that we have recourse to extrinsic evidence to ascertain the intent only when there is doubt and ambiguity as to the intent expressed.

“That where the meaning of the words is plain, it is not allowable to question its being the meaning of the writer, is a fundamental maxim of-all systems of interpretation.

“Ubi in verbis nulla ambiguitas, ibi nulla occurrit voluntatis quaestio.

“Non licet interpretare quae interpretation non egent.” Thayer, supra, page 584.

Wills are not reformed like contracts by extrinsic evidence in equity; wills are interpreted. Here is the fallacy in the argument on page 18 in Mr. Matthews’ brief.

In order to avoid the repugnancy existing between an absolute gift in the beginning of item second and the limitation upon the same in item third, counsel for plaintiffs seek to tear item third out of the will. Now if there is anything in the will about whieh every lawyer in any way connected with this case is agreed, it is as to the meaning of item third. We all agree that if the condition arises where item third is called into application, it is possible that by the death of one of Edward Harwood’s granchildren having a child before the death of such grandchild’s mother, testator’s daughter, the great grandchild might be unjustly disinherited. This, after all, is the principal point of counsel for plaintiffs. It is the bugaboo to frighten the interpreter away from the construction claimed by counsel for the trustee. In the first place, the possibility of such happening is just about as remote as the thought was from the mind of the testator. In the second place, “What of it?” We cannot help it. That is what the testator said in plain, unequivocal language. If, because we do not approve of what testator has said or because we do not see how he could have intended what he has said in unmistakable and unambiguous language, we are to tear a plain provision out of a will, we would not be interpreting a will, but destroying it. The same is to be said in reply to the argument based upon possible intestacy by tbe death of a daughter leaving no children and neither of her sisters surviving her.

These results of intestacy and of disinheriting one in the line of descent are to be avoided if possible, if the language producing such results is susceptible of any other possible construction; but here it is not.

“The rule that a testator will not be presumed to have intended to die intestate as to any part of his estate, to which his attention seems to have been directed, applies only in the construction of a will the language of which is of equivocal import. ’’ Gilpin v. Williams, 17 Ohio St. 396, 397.

“It appearing from the will construed in this case, that it was «learly the intention of the testator to limit the estate given to his wife, in the lot in question to a life estate, and .that no disposition was made of the remainder therein, it passed under the statutes of descent to his heirs at law; and though owing to the unskillfulness of the draftsman, reference is made to the residue of the estate that might remain after the payment of debts, as if he contemplated a disposition of it, yet the whole will is to be taken together, and if it appears that only a life estate in the lot is devised, and no person named to take the remainder,, it must receive such construction.” Colston v. Bishop, 1 Circ. Dec. 257 (1 R. 460).

No; item third is in the will to stay, to have what effect it may if' the time ever comes for its particular application, and to have whatever modifying effect its presence now may have upon the other provi- • sions of the will.

It is claimed on behalf of the plaintiffs that there is such total' repugnancy between the absolute estate given in item second and the-provisions of item third as to make item, third void. To this contention, there are two answers:

First. The estate given in item second is not so clearly and maní-, festly an absolute estate as to make the provisions of item third obviously and necessarily directly and fatally repugnant. We said above that if item-! second stopped at the first comma, we would be of the opinion that the: word, “apportioned,” would be given a dispositive signification, as in Brasher v. Marsh, 15 Ohio St. 103. But this is not the case; the item does not .stop there, but the very next words are a limitation and the beginning of a series of limitations. As was said in Linton v. Laycock, 33 Ohio St. 128, a devise will be implied from a direction to divide, so at best the absolute estate is by implication and not by express devise, and this implication will certainly not be made in disregard and contradiction of express words in the same item and in other parts of the will.

Further, this claim of a total repugnancy begs the whole question, because such repugnancy does not exist unless you assume that the estate given in item second is an absolute estate, and that is the very subject of inquiry here. The only doubtful and ambiguous thing in the will is the nature of the estate given by item second.

Second. The rule prevailing in England and in such states as Pennsylvania, which rigorously rejects a provision for a remainder after an absolute gift, has been much softened and toned down in Ohio by our rule which gives supreme importance to the intention of the testator as construed from the whole will, giving due weight and consideration to every part.

“The whole instrument is to be examined and all taken together and construed as one in order to arrive at the intention, and effect given to every part if possible. Isolated passages are not to control. ’’ Decker v. Decker, 3 Ohio 157; Williams v. Veach, 17 Ohio 171 [49 Am. Dec. 453]; Starling v. Price, 16 Ohio St. 29; Edwards v. Rainier, 17 Ohio St. 597; Townsend v. Townsend, 25 Ohio St. 477; Carter v. Reddish, 32 Ohio St. 1.

It is true, as was said in Collins v. Collins, 40 Ohio St. 353, 364, quoting from Thornhill v. Hull, 2 Cl. & Fin. 22:

“It is a rule of the courts, in construing written instruments, that when an interest is given or an estate conveyed in one clause of the instrument in clear and decisive terms, such interest or estate cannot be taken away or cut down by raising a. doubt upon the extent and meaning and application of a subsequent clause, nor by inference therefrom, nor by any subsequent words that are not as clear and decisive as the words of the clause giving the interest or estate;” and Parker v. Parker, 13 Ohio St. 95; Pendleton v. Bowler, 11 Dec. Re. 551 (27 Bull. 313).

On the other hand, if two clauses of a will are irreconcilable, the last controls the first. Parker v. Parker, supra. But the controlling principle is as stated in Baxter v. Bowyer, 19 Ohio St. 490:

“Conflicting provisions of a will should be reconciled so as to conform to the manifest general intent, and it is only in cases where such provisions are wholly and absolutely repugnant that either of them should be rejected.
“Where, by one clause in a will, property is devised or bequeathed, by words prima facie importing an absolute estate, and by a subsequent clause is given in remainder to another person,, the first devisee or legatee takes only a life estate, and the limitation over is valid.

And more fully in the opinion, per Welch, J., page 497:

“The first question involved is, whether, by the terms of the will, the wife took an absolute estate in fee, or only a life interest. The language of the first item, construed by itself, would undoubtedly give her a fee. But the whole will must be construed together; and in the light of the whole will, and of the surrounding circumstances, each clause is to receive its interpretation. It is only in cases of total and irreconcilable repugnancy, that any of the provisions of the will can be rejected. It is claimed that there is such a .repugnancy here, and that the two last items of this will must be stricken out, leaving the first item to stand alone as the testator’s will. Having disposed of the whole estate absolutely by the first item, the other two items, it is said, are a mere attempt to do what the law will not permit, to engraft a remainder upon a fee simple estate.
“It is true that a remainder cannot be engrafted upon a fee. The true reason of this rule, however, is not because the law will not permit it, but because the thing is impossible. I cannot give the whole of my estate to one and part of it to another. I cannot give the absolute fee to my wife, and the remainder to the church, for the same reason that I cannot give a square circle, or give nothing, because it involves an absurdity. But before this rule can be applied, it must first be well ascertained that the will in question does, when construed, fairly, and in the light of all its provisions and surroundings, give an estate in fee; Whether this mil does so, is the very question here.
“The testator’s intention is the polar star in the construction of a will. It is quite evident on the face of this will, and in view of the fact that neither the testator nor his wife had any children, that he intended his property should go to her and the presbytery, to the exclusion of all others. By the last two items he undertakes to dispose of the entire estate in remainder. He gives, unconditionally and absolutely, $200 for tombstones, and a sum sufficient to defray the expenses of his wife’s last sickness and death; and then provides that, when these two things have been adjusted, ‘all the property then remaining,’ shall go to the presbytery. When remaining? Why, remaining after the deduction of these two sums? In other words, all the estate, except these two sums, and the widow’s life interest, shall go to the presbytery. These last two items constitute a very important part of the will, and are not to be rejected if they can at all.be reconciled with the provisions in the first item. To reject them in toto would be doing much greater violence to the language of the will than would be done by holding that the testator intended by the provisions of the first item to give a. life estate only. What are the provisions of the first item ? They are simply these: He gives his ‘property’ to his wife, with the unrestricted right to ‘possess’ and ‘use’ it, and with a power of ‘sale,’ to be exercised publicly or privately. The -provisions as to the ‘possession’ and ‘use’ of the property add nothing.to the word property, and certainly do not import an absolute estate. - Indeed, their introduction at all, after the clause devising the ‘property’ would seem to negative the idea that the testator supposed he had already vested the property absolutely in his wife. .
“If he supposed he had already made her the absolute owner, why make any provision as to the manner of using or possessing it? She would, as a matter of course, use and possess her own property as she pleased. The same may be said of the power to sell. The absolute owner of property can sell it when and where he pleases. But the tenant for life cannot sell without a power granted for that purpose. Wlien so grarited, prima facie, it is in the nature of an executorial power, or power to change the property into money for the benefit of the estate, or for its better enjoyment. That such is the nature of the power intended here, is also to be argued from the fact that a similar power is given to the wife to collect and pay the debts of the estate. The only thing, therefore, in the first item, which is actually, or even apparently, repugnant to the limitation over, is the word, ‘property.’ „The testator gives to his wife all his ‘property.’ If he had added the words, ‘for life,’ after the word, property, all parts of the will would harmonize, and nothing need be rejected. But any equivalent words will surely answer the same purpose; and words fully equivalent are found in the provisions of items two and three. Read together, the two apparently conflicting provisions would stand thus: ‘I give all my property to my wife,, with remainder in fee at her death to the presbytery of Cincinnati. ’ Such is substantially the language of the will construed in Smith v. Bell, 31 U. S. (6 Pet.) 68. Indeed the language there was more repugnant than here. The language there was,.‘ I give to my wife, Elizabeth Goodwin, all my personal estate * * * to and for her own use and benefit, and disposal absolutely; the remainder of said estate, after her decease, to be for the use of said Jesse Goodwin.’ And yet the court held, Chief Justice Marshall delivering the- opinion, that the wife took only a life estate, and that the limitation over was effectual. ’ ’

Also, case of Pruden v. Pruden, 14 Ohio St. 251, opinion by Ranney, J.:

“When an instrument is open to two constructions — the one consistent and the other repugnant to law, of the one will give effeet to the whole instrument and the other will destroy a part — the former must always be adopted.
“The rule which destroys a remainder in personal property, when an absolute power of disposition is given to the first taker, does not apply in any case where a total repugnancy between the remainder and the .prior interest, does not exist.”

Also see King v. Beck, 15 Ohio 559.

In Johnson v. Johnson, 51 Ohio St. 446 [38 N. E. Rep. 61]:

“A testator, after providing for the payment of his debts, used the following language in his will: ‘Second. I give and devise unto my beloved wife, and her assigns, all of the remainder of my property, both real and personal, however the same may be known, or wheresoever the same may be situate, with full power to bargain, sell, convey, exchange or dispose of the same as she may think proper; but, if at the time of her decease, any of my said property shall remain unconsumed, my will is, that the same be equally divided between my brothers and sisters, and their children, if deceased, the children to have the same amount the parent would be entitled to if living’: Held, that under this will the widow took only a life estate in the property, both real and personal, with power to bargain, sell, convey, exchange or dispose of the same as she might think proper for consumption in her life support, and that what remained at the time of her death, uneonsumed in supporting her, belongs to the remaindermen designated in the will.”

But it seems to us idle to discuss this proposition or to cumulate authorities, in view of Chief Justice Marshall’s opinion in Smith v. Bell, supra, especially at the top of page 76. See also Howe v. Fuller, 19 Ohio 51, 56; Stableton v. Ellison, 21 Ohio St. 527, 533.

It is contended by counsel for plaintiffs that the clause, “Nevertheless, each of my children shall have full power and authority to will and devise her portion of said inheritance in such manner as she shall see i\t,” is without significance because it is perfectly consistent with an absolute gift. But when you examine item third and see what happens if his daughters do not make wills, then this clause becomes pregnant with meaning and it becomes evident that by it an additional power was given not included in the first gift.

To sum up this branch of the discussion, the one uncertain and ambiguous thing in the will is the nature of the gift or devise by the two-thirds being “equally apportioned;” and the clear and unequivocal things in the will are the limitations upon that gift or devise.

As to authorities of counsel for plaintiff, we find nothing particularly helpful to the case at bar in the case of Turner v. Hellard, 30 Ch. Div. 393, only the general rule favoring testacy. The same is to be said of Hughes v. Prichard, 6 Ch. Div. 29.

The definition of the primary or paramount intent of a testator and of the secondary or minor intent in Smith’s edition of Fearne, Bemainders 252, is in accord with our understanding of Mr. Harwood’s will. The primary or paramount intent is, that the ancestor, one of Mr. Harwood’s daughters, should have the enjoyment of the estate for her life, and subject thereto the estate should descend to all his descendants , so far as the rules of descent will permit. The secondary or minor intent is to accomplish the primary or paramount intent in a particular mode — in such a mode at least as the devisor supposes as to secure that primary or paramount intent from being defeated by the act of the ancestor. In other words, the second or minor intent is, that the ancestor should have a life estate only and that her issue should take by purchase.

So here the testator’s primary or paramount intent was, that Mrs. Bobbins was to have a life estate only and that those who took after her should not take as heirs at law but by purchase from Edward Harwood. Belying on her maternal instinct to preserve the property in the line of her descendants, he prescribed the mode by which she, under the power, was to name those who were to take the remainder from the original testator, and in default of her exercise of the power, testator prescribed who should take the remainder from him. Now even, although the minor or secondary intent be defective as a mode of securing the carrying out of the primary or paramount intent, any defect in the minor or secondary intent is not allowed to defeat or control the primary or paramount intent, when it is ascertained.

As to Mickley’s Appeal, 92 Pa. St. 514, while we do not deem it safe to rely on Pennsylvania cases in matters like the case at bar where the Ohio Supreme Court has so clearly declared the law, there is nothing in this case at variance with the law of Ohio or our conclusion. It is a case of a bequest made to a person absolute in the first instance. That is the precise inquiry here.

The cases of Wolfer v. Hemmer, 144 Ill. 554 [33 N. E. Rep. 751], and Wilson v. Turner, 164 Ill. 398 [45 N. E. Rep. 820], are like the Ohio cases of Collins v. Collins, and Parker v. Parker, supra. The same can be said of Mulvane v. Rude, 146 Ind. 476 [45 N. E. Rep. 659]. The case of Law v. Douglass, 107 Iowa 606 [78 N. W. Rep. 212], is like the Ohio case of Johnson v. Johnson, 51 Ohio St. 446 [38 N. E. Rep. 61]. The case of Hambel v. Hambel, 109 Iowa 459 [80 N. W. Rep. 528], might be classed with the case of Collins v. Collins, supra. The same of McNutt v. McComb, 61 Kan. 25 [58 Pac. Rep. 965], The case of Webster v. Webster, 93 Ky. 632 [21 S. W. Rep. 332], is either not in point or at variance with the Ohio authorities; it is so different that it is hard to tell. It is not helpful in construing the case at bar. The ease of Engel, In re, 180 Pa. St. 215 [36 Atl. Rep. 727], is a Pennsylvania case, and, as that state follows the English rule as to repugnancy, is not an authority here. The case of Megargee v. Naglee, 64 Pa. St. 216, is clearly a case of marital trust and an unsafe authority for the reason assigned above to all Pennsylvania cases. The case of Tyson, In re, 191 Pa. St. 218 [43 Atl. Rep. 131], is a Pennsylvania ease, and seems at variance with the. other cases from that state and to support the contention of counsel for defendants herein. In this case the court speaks of restoring the rule as to intention to its original and proper prominence. Kelley, In re, 193 Pa. St. 45 [44 Atl. Rep. 289], is simply a ease where the court construes a will as it finds the intention.

We have examined all the eases cited, out of deference to the learning and research of counsel, but we are constrained to say that we find very little assistance in them: First, because they are not needed to establish any of the well-known canons of construction; and, second, because of the singularity of every will others cannot help much.

Having come to the conclusion that Harriet C. Robbins, Gertrude Gordon and Adaline French each take a life estate only in their respective portions of the two-thirds mentioned in item second, the only question remaining is, "What effect has the contract made by the parties in their effort to terminate the trust?

“Although a trust may not have ceased by expiration of time, although all its purposes may not have been accomplished, yet if all the parties who are or may be interested in the trust property are in existence, and sui juris, and if they consent and agree thereto, courts of equity may decree the determination of a trust and the distribution of the trust fund among those entitled. A trust will not be. continued merely that the trustee may continue to receive compensation from it. If the cestuis desire its termination, it- will not be maintained for the benefit of the trustee.” Perry, Trusts 920; Gloyd v. Roff, 1. Circ. Dec. 472 (2 R. 253); Taylor v. Huber, 13 Ohio St. 288.

In the case at bar everybody interested in these three several trusts has not joined in an agreement to determine.

We pass the question of the possibility of either of testator’s daughters hereafter having children.

There are contracts between Mrs. Gordon, and her children and between Mrs. Bobbins and her children providing for a determination of the trusts. There is nothing to indicate, any consent on the part of Mrs. French to a determination, of the trust of her portion. Neither is there any consent on the part- of Mrs. Bobbins to the termination of the Gordon trust, nor of Mrs. Gordon of the Bobbins, trust, and nothing in regard to the French trust. There are cross-contingent interests entirely unprovided for.

It was held in Sise v. Willard, 164 Mass. 48 [41 N. E. Rep. 116] :

“A bill in equity to compel an absolute transfer to the plaintiff of a fund held for him by the trustee under a will cannot be maintained, if his interest in the fund is only a life interest coupled with a power of testamentary disposition.”

And was further said in the opinion, page 51:

“It is premature now to consider whether, on the death of the plaintiff leaving issue but having made no testamentary disposition of her share, that share will go to such issue.”

As we have said before, we find that it was the intention of the testator that the respective portions of each of his daughters should be intact at the time of her death. The trust cannot, even by agreement,, be terminated in a manner to defeat this intention.

“A testator devised land to his three daughters, H, M and P, their heirs and assigns, with proviso that in ease P should remain unmarried, and should make no disposition of her estate by will, her share should at her death' be equally divided among her sisters, if surviving her; if not, then among their children: Held, following Kent v. Armstrong, 2 Halst. Ch. 637, that P took only a life estate, with power of testamentary disposition; held, also, that the releases'of conveyances of H and M and those of M’s children (she is dead), and H and her children, did not perfect the title.” Cantine v. Brown, 46 N. J. Law 599.

“Upon a devise of real estate to executors in trust to permit a married daughter ‘to use arid occupy the farm and to take the rents, issues and profits thereof to her own use during her natural life, free from any control o'f her present or any future husband, and not to be in any wise liable for any debt or debts he now owes, or which any future husband may hereafter contract,’ the court will not upon the death of the husband permit the trust to be set aside, or the estate to be conveyed to the cestui que trust.” O’Kill v. Campbell, 4 N. J. Eq. 1, 13.

As to the conveyance and the contracts by Mrs. Bobbins and Mrs. Gordon, to make wills:

“There can be no doubt of the legal right of one having the exclusive ownership of property, to enter into a contract to execute a will in favor of the other contracting party, and if a will executed under these circumstances be subsequently canceled, the aid of a court of equity can be invoked.
“But where the power of disposition by will is given to a person having no reversionary interest, an attempted execution of the power by a will made in conformity with the terms of an alleged contract, is invalid. The power is not thereby exhausted, and such will is revoked by a subsequent will duly admitted to probate.” Wilks v. Burns, 60 Md. 64.
“Where a person is tenant for life with a power to. appoint the inheritance by will only, and is desirous to sell the fee simple, he may convey to the purchaser for a long term, depending on his life, and exercise the power in the purchaser’s favor by will, and covenant not to revoke it. The title, of course, will be incomplete during the vendor’s life as he may choose to revoke the will.and drive the purchaser to his remedy under the covenant; so he may revoke the will by a clandestine act, and leave no assets to answer the breach of covenant. But if a purchaser be willing to incur the risk, no objection can be raised to the execution of the power should it ultimately take effect. It is a mistake to call it an execution by deed, for the donee has still full power to revoke the will; the performance of the covenant cannot be enforced, but damages only can be recovered for a breach of it. ’ ’ Sugden, Powers 312.

We are, therefore, of the opinion that the trusts created in Edward Harwood’s will must stand during the respective lifetimes of his daughters, and plaintiffs’ petition will be dismissed.

Giffen and Swing, JJ.,.concur.


author: WINCH, J.

text:
    CORPORATIONS — RESCISSION OF CONTRACT — FRAUD.
    [Cuyahoga (8th) Circuit Court,
    January 16, 1905.]
    Hale, Marvin and Winch, JJ.
    John B. Orton, Jr. v. Edson Reduction Machinery Co.
    1. Corporation Having Sold Stock as Fully Paid Cannot Subsequently Assess Holder for Difference in Market and Par Value Thereof.
    A corporation having issued its stock as fully paid, in exchange for property transferred at an agreed valuation, cannot thereafter, without the consent of the stockholder, treat his stock as only partially paid and assess him for the difference between the market value of said property and the par value of the stock issued in exchange for it.

      2. Where Fraud Taints Transaction Corporation’s Remedy is to Rescind.
    In such case, where actual fraud has entered into the transaction, the remedy of the corporation is to rescind the agreement, tender the property back to the stockholder and ask that he be compelled to return the stock, or its market value, to the corporation.
    Appeal.
    O. J. Horn and A. A. Bemis, for plaintiff:
    Estoppel of corporation to collect subscriptions on stock held out to be paid up, etc. 1 Cook,. Corporations Sees. 38, 42, 46.
    The power to make assessments on corporate stock is wholly statutory. Wells v. Green Bay & M. G. Go. 90 Wis. 442 [64 N. W. Rep. 69].
    Smith & Taft, for defendant.
   WINCH, J.

This ease comes into this court on appeal and was heard upon demurrer to the amended answer.

The petition sets forth that plaintiff is the owner of fifty-eight, fully paid, nonassessable shares of the capital stock of the defendant company, a corporation organized under the laws of the state of Maine; that for the purpose of meeting its losses and expenses, the defendant company is attempting to levy and collect an assessment of five dollars per share upon the stock of plaintiff and other stockholders and, on August 26, 1904, notified him that unless he paid said assessment within five days, it would sell his stock. Alleging the insolvency of the corporation and the injury which would result to him if his stock should be so sold, plaintiff prays that defendant be enjoined from selling his stock, or offering it for sale.

The answer admits plaintiff’s ownership of stock and the attempt to levy an assessment thereon, sets forth the regularity of the steps taken to levy the assessment, pleads the laws of Maine regulating corporations, and further sets forth a contract dated December 24, 1901, signed by all of the stockholders of the Buckeye Fish Company, including plaintiff, wherein it was agreed that a reduction company should be organized to take over the reduction part of the business of said Buckeye Fish Company, said company to be formed to have a capitalization of $1,500,000 and that $1,200,000 of its stock should be issued to the stockholders of the Bufikeye Company pro rata as the purchase price of certain patents and processes owned by said company, such stockholders agreeing that the executive committee of the Buckeye Fish Company should take the necessary steps to incorporate said new company in such state as said committee should deem best, take charge of stock subscriptions and the delivery of said stock to the signers of said agreement.

The answer alleges that the defendant company was organized pursuant to said agreement and its stock issued as therein provided, plaintiff obtaining his stock in that manner; that the property turned over in payment for said $1,200,000 of stock was at the time carried on the books of the Buckeye Fish Company at a valuation of only $200,000 and was at the time of no more value than that amount; that the new company had no other assets than the patents and processes so conveyed to it, which plaintiff and all other stockholders well knew, and that they then knew and contemplated that to develop said patents and processes, put the same upon the market and construct plants and machinery to operate under the same would involve a large additional expense, and that they authorized the directors and officers of the defendant company, by electing them as such, to incur such expense,- well ■knowing that there were no resources from which they could be paid, except by assessment upon the stockholders, which defendant company made in order to provide funds for the prosecution of the business of the company.

The answer further alleges that by reason of the premises, plaintiff’s stock, although it purports to be paid up stock, is not paid-up stock; that it was never delivered to the stockholders as such and that it would be an actual fraud upon its creditors to so treat the same.

A second defense pleads the force and effect of said contract of December 24, 1901, as an authorization to the directors of the defendant company to incur indebtedness for the prosecution of the business of the company; that said indebtedness was created with plaintiff’s knowledge ; that there was no other way to pay said indebtedness except by an assessment on the stock, and that by making said assessment the directors were carrying out the intention and object of the stockholders, and plaintiff should not now be heard to deny the right of the directors to make said assessment.

The contract is not set out in full in the pleadings, but it is apparent from what is set out that by it no express authority was given by the stockholders to the directors to make any assessments and that the corporation has taken no steps to rescind or set aside the original issue of its stock in payment for the property mentioned in said contract.

The statutes of Maine, under which this corporation was incorporated, provide that, “No payment upon any subscription to, or agreement for, the capital stock of any corporation, shall be deemed a payment within the purview of this chapter, unless bona fide made in cash, or in some other matter or thing at a tona fide and fair valuation thereof” (Sec. 87, Chap. 47 Rev. Stat.); “That assessments, not exceeding the amount originally limited for a share, may be made on all the shares subscribed and noi paid for," Sec. 37; and that “any corporation may purchase mines, manufactories and other property necessary for its business # # * and issue stock to the amount of the value thereof in payment therefor, * * * and the stock so issued shall be full-paid stock and not liable to any further call or payment thereon; and m the absence of actual fraud in the transaction, the judgment of the directors as to the value of the property purchased, or services rendered, shall be conclusive.” Section 50.

The truth of the allegations of the answer that the property turned over to the corporation to pay for the stock issued by it was worth only one-fifth the par value of said stock and that said fact was well known to all the parties to the transaction, is admitted by the demurrer. Such being the case, the real value of the property being so grossly inadequate, it is claimed by defendant that an action would lie in favor of a creditor of the corporation, to compel the stockholders to pay up the other four-fifths on their shares; that if a creditor has a right to compel such payment as an unpaid subscription, the corporation itself can voluntarily require it

In answer to this it may be stated, that the authorities are not agreed that a creditor, after exhausting the assets of the company, can compel a stockholder to make good the difference between the par value of his shares and the real value of property exchanged for them.

Thompson in his treatise on Corporations, inclines to the conclusion that where property is turned in to the corporation in payment of its shares, under whatever scheme, at an overvaluation, to the knowledge of the contracting parties, this will be evidence of fraud such as will render the stockholder liable. 2 Thompson, Corporations Secs. 1616, 1621.

1 Cook, Corporations Sec. 46, says:

“They, (corporate creditors) seek to hold the stockholders liable for the par value of the stock, less the real value of the property which was turned in to the corporation. During the past ten years there has been a vast amount of litigation on this subject. The courts disagree in their conclusions, but a careful study of the cases will show that upon authority as well as principle the stockholders cannot be held liable in such a case. * * *
“The reason of the rule is, that if the payment by property was fraudulent, then the contract is to be treated like other fraudulent contracts. It is to be adopted in toto, or rescinded in toto and set aside. Both parties are to be restored as nearly as possible to their original positions. The property or its value is to be returned to the person receiving the stock, and he must return the stpck or its real value.”

The authorities, however, agree that:

“The corporation itself, after issuing its stock as paid-up stock, ' and declaring it so to be, cannot subsequently repudiate that declaration and agreement and proceed to collect, either from the person receiving the stock or his transferee, the unpaid part of the par value. It is es-topped from so doing.
“Where, however, actual fraud enters into the transaction, then the corporation is not estopped from having the agreement set aside. The person receiving the stock can then be compelled to return the stock’or its market value, and take back that which he gave to the corporation for it. But the corporation cannot hold him liable for the par value of the stock.”, 1 Cook, Corporations Sec. 38. See also 2 Thompson, Corporations Chap. XXVII, passim.

Believing the law as stated by Cook is applicable to this case, the demurrer to the amended answer is sustained.

Hale and Marvin, JJ., concur.


author: SWING, J.

text:
    CONTRACTS — MAXIMS.
    [Hamilton (1st) Circuit Court,
    December 3, 1903.]
    Giffen, Jelke and Swing, JJ,

      Edward Pape v. Standard Oil Co.
    Contract to Deceive Public Unenforceable.
    A contract to deceive and practice a fraud upon the public, such as the agreement of the vendor of a business to continue it in his own name for the benefit of vendee, under which arrangement the latter received a benefit from the public which otherwise it would not have received, is invalid and unenforceable in any action, notwithstanding complainant has fully performed his part. The maxim, “Ex turpi causa non oritur actio,” applies to such transaction.
    Error to Hamilton common pleas court.
    Plaintiff was formerly the driver of an oil wagon for one J. W. Austin, an oil dealer, who sold out to the Standard ’ Oil Company along in 1894. He continued as driver on the old route after the sale, and, at the request of the company, placed his own name upon the wagon instead of that of the Standard Oil Company. .He alleged in his petition that in consideration therefor the company agreed to pay him $15 a week, and in addition thereto the reasonable worth of his services on account of his holding himself out as the owner of the route. He worked under this arrangement for seven years, rendering bills during that time in his own name, and leading the public in various ways to believe that he was the owner of the route. The company refused to pay him anything beyond $15 per week, and after its refusal to do so, he brought suit for $10,500 for the special services so rendered during the seven years.
    David Davis, for plaintiff in error. >
    J. R. Jordan, for defendant in error.

       Affirming Pope v. Standard Oil Co. 13 Dec. 751.

   SWING, J.

The gist of the plaintiff’s action is thus stated in his petition: “Plaintiff further avers that if the various customers knew that the Standard Oil Company was furnishing the oil, that it (The Standard Oil Company) would lose all of its customers; and by reason of said knowledge, and knowing that it would lose said customers if it were made known that the defendant, The Standard Oil Company, was the owner of said route; and for the further reason that the Standard Oil Company instructed and directed said plaintiff to state that he was the owner of said oil route, and by his name, the defendant, The Standard Oil Company, reaped a great profit which it otherwise would not have received; and by placing his name upon said oil wagon, and by rendering bills and receipting them in his own name and making it known to the various customers that he was the owner of said oil route, his services in that respect were valuable and profitable to the defendant, and that for such services in using the name of the plaintiff said defendant, The Standard Oil Company, made a great profit. ’ ’

In other words the plaintiff’s claim is founded on an agreement with the defendant to lie to and deceive and defraud the public, and having thoroughly performed his part of the contract, he asks a court of justice to compel the defendant to perform its part.

“Ex turpi causa non oritur actio,” is a maxim of the law. Broom’s Leg. Max. 729.

In Wight v. Rindskopf, 43 Wis. 344, 348, the court say:

“They do not hold, we know of no case which does, that when a contract is in terms contra bonos mores, it is necessary for the defendant to plead the objection; or that a court will proceed to judgment upon it, both parties even assenting. If the objection be not made by the party charged, it is the duty of the court to make it on its own behalf. Courts owe it to public justice and to their own intergrity, to refuse to become parties to contracts essentially violating morality or public policy, by entertaining actions upon them. It is judicial duty always to turn a suitor upon such a contract out of court, whenever and however the character of the contract is made to appear.”

No other authorities need be cited. The judgment should be affirmed.

Giffen and Jelke, JJ., concur.


text:
    TRUSTS — CONVERSION—ATTACHMENT.
    [Hamilton (1st) Circuit Court,
    February 2, 1903.]
    Swing and Jelke, JJ.
    Mabel H. Martin v. Austin Gunnison and Julia G. Porter.
    1. Liability of Trustee for Conversion Arises Ex Contractu as Well as in Tort.
    A cause of action ex contractu is stated in a petition which avers that plaintiff is the owner of a one-half interest in one hundred shares of stock held in trust, and that the trustee had converted the same to his own use; defendant’s liability in such case is founded on his implied promise to pay over the stock which he agreed to hold in trust, notwithstanding bis liability also sounds in tort.
    2. Attachment Lies When Action Based on Contract.
    An attachment may be issued in such ease, because the cause of action is based on contract.
    3. No Defect in Parties Plaintiff When Plaintiff Sole Owner of Fixed One-half Interest.
    There is no defect in parties plaintiff for failure of plaintiff to join any one else with her, when it appears that her interest in the subject-matter of the action is an absolute and fixed one-half interest.
    4. Filing of Answer is Entry of Appearance, Although Different Purpose Intended.
    The filing of an answer by defendant is an entry of appearance to the action as effectually as if he had been served with summons; and the statement that he did so only for the purpose of filing a demurrer, amounts to nothing.
    Error to Hamilton common pleas court.
    Theodore Horstman, for plaintiff in error.
    Joseph Cox, Jr., for defendant in error.
   SWING, J.

This case is in this court on error. In the court of common pleas, a general demurrer to the petition was sustained, and the court also dismissed an attachment which had previously been issued against the property of the defendant.

In brief the petition set out that the defendant had in 1875 assigned to one Howe, one hundred shares of stock of a railroad company in trust for the use of the mother of the plaintiff during her life, and after her death' to be divided between the children surviving her; that the mother had died leaving the plaintiff and a sister, her only children surviving ; that the defendant had been appointed trustee in succession to said Howe, and had taken possession of said one hundred shares of stock as said trustee; that he had received 6 per cent, interest annually on said stock for several years, and had converted both interest and the said stock to his own use; and she prayed judgment against said defendant for one-half of the value of said stock and interest.

In our opinion the petition states a good cause of action, and that while defendant was guilty of a wrong in converting to his own use the stock which he had agreed to hold in trust for the plaintiff, still the right of action of plaintiff against the defendant was founded on the implied promise of the defendant to pay over to the plaintiff the stock which he had agreed to hold in trust, and while the action sounds in tort, it rests in contract. There was no defect in parties plaintiff. The portion belonging to plaintiff had been fixed — it was one-half — and the whole was to be divided, and her portion given to her. Her only interest was in the one-half, and no other person had any interest with her in this one-half, and the action was rightly brought by her without joining anyone with her. The action being on a contract, an attachment was properly issued under the allegations in the attachment proceedings. When defendant filed his answer, he entered his appearance to the action as effectually as if he had been served with summons; and the statement that he did so only for the purpose of filing the demurrer amounted to nothing.

The court erred in sustaining the demurrer and dismissing the attachment, and the judgment will be reversed-for these reasons, and the cause remanded for further proceedings.

JeJke, J., concurs.


author: GIFFEN, J.

text:
    MASTER AND SERVANT — CONTRACTS—EVIDENCE.
    [Hamilton (1st) Circuit Court,
    January 7, 1905.]
    Giffen, Jelke and Swing, JJ.
    Highland Buggy Co. v. Abijah S. Parker.
    1. Agreement of Employe to Promote Interest of Employer Implies Ability to Promote, etc.
    An agreement by a salesman of a buggy company in his contract of employment to promote the interests of the company to its satisfaction, is substantially a representation that he has the experience and ability to and would promote the interests of the company in such manner as would satisfy it. A breach of such agreement will justify his discharge.
    2, Dissatisfaction of Employer to Warrant Employe’s Discharge Must not Be Based on Mere Whim, etc.
    The dissatisfaction which would warrant the discharge of an employe for breach of his agreement to promote the interest of his employer to his satisfaction, must be based upon such facts as would warrant a reasonable person in the conclusion that the services of the employe were not promoting, either directly or indirectly, the interests of the employer, provided always that the latter acted in good faith and performed his part of the contract. The mere whim or caprice of the employer is not sufficient.
    S. Yerbal Statements Competent to Explain Ambiguity of Written Contract, etc.
    Evidence that an employe represented to his employer that he could sell at least one thousand jobs, and if he did not sell eight hundred he would not ask any compensation, which representations were not embodied in the written contract of employment, is incompetent to prove a promise to that effect; but, on the issue as to whether or not the employe promoted the interests of the company to its satisfaction, as he agreed to do in his written contract of employment, such evidence is competent for the purpose of arriving at a proper construction and application of such agreement, especially when it is claimed by the employe to be indefinite and uncertain.
    4. Salesman Must Conform to Reasonable Prices Fixed by Employer.
    Where the contract of employment expressly provides that all sales should be made at prices furnished by the employer from time to time, the employe is hound to-conform to the reasonable prices fixed; and sales made by him below such prices, not only in violation of the contract hut against the employer’s protest, is a direct breach of the contract, and warrants the employe’s discharge.
    5. Financial Responsibility of Purchaser Reserved to Employer, When.
    Where the price at which vehicles were to he sold was specially provided for in the contract of employment, a clause in the contract that the sales are subject to the approval and acceptance of the employer, will be held to refer only to the financial responsibility of the purchaser and such other elements of the sale which could not be anticipated or provided for in the contract.
    Error to Hamilton common pleas court.
    Harper & Allen and Philip Roettinger, for plaintiff in error.
    J. B. Kelley, for defendant in error.
   GIFFEN, J.

The defendant in error, as plaintiff in the court of common pleas, brought an action against the plaintiff in error as defendant, to recover dam&ges for breach of the following contract, to wit :

“Elmwood Place, Ohio, Dec. 6, 1899.
“The Highland Buggy Company, Elmwood Place, Hamilton county, Ohio, hereby employs A. S. Parker, of Aurora, Mo., to act as salesman in selling its vehicles' in Kansas, Missouri, south of Missouri river, and Oklahoma Territory, for one year from December 1, 1899, at a salary of one thousand ($1,000) dollars per annum, payable in equal monthly installments.
“Said company will also pay the proper and necessary traveling expenses of said A. S. Parker, in canvassing said territory, and will pay him at the end of the year five (5) per cent upon all sales made by him in excess of twenty-five thousand ($25,000) dollars.
“This five (5) per cent on sales in excess of twenty-five thousand ($25,000) dollars is to be paid on all mail orders following the initial order taken by the said A. S. Parker, said sales being subject to the approval and acceptance of the said The Highland Buggy Company.
“In consideration of the foregoing, A. S. Parker will give his entire time and attention to selling the vehicles of said company in the territory named, at prices furnished him from time to time, and will promote the interest of the Highland Buggy Company all to its satisfaction.
“Should said company not be able to collect any account made by said A. S. Parker, owing to the insolvency or failure of the purchaser, then said account shall not be taken into consideration in fixing the basis of the five (5) per cent above specified.
“The Highland Buggy Company,
“H. J. McCullough, Sec. & Treas.
“Accepted, A. S. Parker.”

Plaintiff entered upon the performance of the contract and rendered services as salesman for the defendant for a period of about four months, when the defendant discharged him for the alleged reasons that he had sold buggies at prices below those furnished him, made terms with parties contrary to the orders sent in by him, and in other ways violated his contract.

The chief controversy arises upon the construction of that part of the contract which provides the things to be performed by the salesman, it being contended by the plaintiff in error that it was justified in discharging the defendant in error whenever it became dissatisfied with the manner in which he performed his services. And on the other hand, the defendant in error claims that the meaning of this clause is, Parker agreed to promote the interest of the buggy company by taking orders for their vehicles at prices furnished to him from time to time all to its satisfaction.

It is manifest that the company could not be heard to complain of the use of his time, if he gave his entire time and attention to selling the vehicles of said company in the territory named, and it should and must be satisfied therewith, for the reason that it is a compliance with the very terms by it prescribed. So, likewise, if he made the sales at the prices furnished him from time to time by the company. That which is uncertain in the contract, and which in the nature of the ease could not be stated with exactness in the contract, relates to his promise to promote the interest of the company. This is substantially a representation to the company that he had the experience and ability to promote and would promote the interests of the company in such a manner as would satisfy it.

The general charge of the court upon this provision of the contract was most favorable to the plaintiff in error, and the first special instruction requested by it was properly refused. The dissatisfaction which would warrant the company in terminating the contract could not depend upon mere whim or caprice, but upon such facts as would warrant a reasonable person in the conclusion that the services of the salesman were not promoting, either directly or indirectly, the interests of his employer, provided always that the latter acted in good faith and performed his part of the contract.

The evidence shows that the employment was not profitable to the company, and the jury might well have found that it was justified in terminating the contract under this clause, but having found for the plaintiff upon this issue, we will not now disturb that finding.

Testimony was offered tending to prove that the plaintiff before executing the contract, represented to the defendant that he could sell at least a thousand jobs, and if he did not sell eight hundred he would not ask any compensation, and the court excluded it. While this testimony was incompetent to prove a promise to that effect not embodied in the contract, yet we think it was competent to give a proper application of the words we have been considering and the object sought to be attained by the contract, especially if the clause is indefinite and uncertain as claimed by the counsel for defendant in error. Hildebrand v. Fogle, 20 Ohio 147.

Testimony shows that the plaintiff sold vehicles at prices less than those fixed by the defendant company, not only in violation of the contract but against its protest. The contract expressly provides that the sales should be made at prices furnished him from time to time, and if the company in good faith fixed reasonable prices, the sálesman was bound to conform thereto, and if he sold below such prices, it was a direct breach of the contract and warranted his discharge.

It is claimed, however, by counsel for plaintiff, that all sales were subject to the approval and acceptance of the company, and that the orders were so taken and transmitted. But reference to the contract shows that “said salés” referred only to those in excess of $25,000; and there is no pretense that the plaintiff sold that amount, besides, even granting that all sales were taken subject to approval and acceptance, such approval did not relate to the price, because that was especially provided for' in the contract, but it related to the financial responsibility of the purchaser and such other elements of the sale, which could not be anticipated or provided for in the contract.

The court correctly charged the jury upon this issue, and its finding in favor of the plaintiff is manifestly against the weight of the evidence.

The court .properly refused to give any of the special charges requested by the defendant.

We find no other error in the record and the judgment will be reversed, and cause remanded for a new trial.

Jelke and Swing, JJ., concur.