author: RUSSELL, J.

text:
    RIPARIAN OWNERS.
    [Pike (4th) Circuit Court,
    1901.]
    Cherrington, Russell and Sibley, JJ.

      Robert Welty v. John M. Vulgamore.
    1. Extraordinary and Unusual Floods — Embankment.
    A riparian owner who constructs an embankment upon his own lands to protect them from the action of the waters of a stream, is not liable for injuries to lands of a neighboring owner caused thereby, where such injuries are suffered during certain extraordinary 'and unusual floods which could not, at the time of the construction of such embankment, have been anticipated by a man of ordinary prudence and intelligence.
    2. Estoppel.
    To constitute an estoppel the person sought to be estopped must have done some act or made some admission, inconsistent with his claim, with the intention of influencing the conduct of another, and such act or admission must actually have had that effect.
    Heard on Appeal.
    J. A. Eylar and S. L. Patterson, for defendant in error, cited:
    Crawford v. Rambo, 44 Ohio St. 279, 284 [7 N. E. Rep. 429]; Angelí Water Courses, Secs. 333, 334;'Illinois Central Ry. Co. v. Bethel, 111. App. 1; Bell v. McClintock, 9 Watts 119 [34 Am. Dec. .507] ; Pittsburg, Ft. W. & C. Ry. Co. v. Gilleland, 56 Pa. St. 445 [94 Am. Dec. 98] ; Baltimore & O. Ry. Co. v. School District, 96 Pa. St. 65 [42 Am. Rep. 529]; Kansas'City, M. & B. Ry. Co. v. Smith, 17 So. Rep. 78 [72 Miss. 677; 27 L. R. A. 762; 48 Am. St. Rep. 579] ; Village v. Kallagher, 52 Ohio St. l'83 [39 N. E. Rep. 144]; Pittsburgh, Ft. W. & C. Ry. Co. v. Brigham, 29 Ohio St. 374; Ohio & M. Ry. Co. v. Ramey, 28 N. E. Rep. 1087 [139 111. 9] ; Frazier v. Brown, 12 Ohio St. 294, 312; Letts v. Kessler, 54 Ohio St. 73 [42 N. E. Rep. 765],

       Affirmed by Supreme Court, without report, December 9, 1902, 67 O. S. 529.

   RUSSELL, J.

(Orally.)

The case of Robert Welty v. John M. Vulgamore, is a petition coming into this ¿ourt by appeal from the court below. The case is brought here upon an amended petition filed by the plaintiff, and it alleges that the plaintiff was, at the time hereinafter mentioned, which was in 1890, and still is, the owner in fee simple of eighty-five acres of land situate in this county, on the easterly side of the Scioto, and I might say, also alleges that it is situated on the exterior bend of the river. The plaintiff also alleges that the defendant (Vulgamore) is the owner of one hundred and forty-five acres of land situate on the westerly side of the Scioto river, and on the interior bend thereof. The plaintiff further alleges that in 1884, and before the plaintiff became the owner of the said land, there occurred in said river a gr^at, unusual and unprecedented flood, whereby the lands of defendant were deluged and flooded; that the defendant witnessed the same and thereupon determined to construct an embankment of sufficient height and extent to withstand the pressure and turn the waters of the most unusual and extraordinary flood that might occur in the river. Then the plaintiff alleges that some time prior to February, 1898, and after the flood of 1884, the defendant constructed, upon his lands above described, within the bend of the river aforesaid, an embankment composed of earth and stone, about one hundred rods in length and of great and unreasonable height, extending from a point near the canal, in an easterly direction across the bottom to the river, near to low water mark in said river, or stream, said embankment being located about the middle of said bend and at right angles to the stream.

The plaintiff says that said levee was of sufficient height, length and extent to turn the overflow in case of the usual and ordinary, and the most unusual and extraordinary freshets, and the said embankment was higher by some feet than the highest flood that ever occurred in said stream, including the flood of 1898; that the effect of the said embankment in times of freshets, alike in usual and extraordinary floods in said river, is to form a dam to the overflow water of the river, and to prevent such overflow from passing into and over the lands aforesaid of the defendant; but such overflow waters are by said embankment diverted from their natural course down the river in a southerly direction and caused to flow easterly across said embankment and otherwise to flow across it and over upon the lands of the said plaintiff, that because of the bend in the river at said point, in times of freshets, the great body and volume of the overflow water would naturally flow over the lands of the defendant on the west side of the river, but by the erection and maintenance of said levee or dam, by the defendant, all of the said overflow is dammed up, forced along said embankment, and flows over the opposite side, upon the plaintiff’s lands, thereby relieving defendant’s lands and throwing the entire weight and burden of water upon the lands of the plaintiff, causing a more rapid and whirling current around to the east of the said levee and upon the lands of the plaintiff; that because of the increased force of the current of water occasioned by said embankment, the lands of plaintiff are being encroached upon, the river is being rapidly moved to the eastward, thereby diminishing the lands of plaintiff, by the encroachments of the river, and increasing the lands of the defendant by dccretion produced by the action of said river; that during the flood of 1898, and at all times of flood of said river, including both ordinary and usual freshets when said stream is out of banks, which is reasonably expected and does occur during the rainy season oí each year (which said floods have occurred one or more times during the erection of said levee) the lands of the said plaintiff were overflowed' by the waters of the said river, and because of the embankment, the overflow on the said lands of the plaintiff was increased in violence, and said lands were entirely inundated, and by the rapid and swirling current, said waters washed off and carried away the soil from about thirty-five acres thereof, washed deep holes and gullies in the surface, deposited logs, debris and' gravel thereon, and undermined and washed away a large portion of the west side of the plaintiff’s lands, thereby rendering said lands wholly unfit for cultivation and destroying the same.

The plaintiff avers that said embankment is unreasonable in height and extends out into the river almost to low water mark, and by reason of the great and unreasonable height of the levee — the great and unreasonable height and length of said levee — plaintiff’s lands continue- to wash and undermine and be damaged by the ravages of the said stream at times of flood, as aforesaid, and each recurring flood will cause an additional injury to plaintiff’s lands, if said embankment is maintained at its present height.

The plaintiff in the case then further avers that said embankment was constructed by defendant at a point in the bend of the river, and at such length and height as would throw all the water off his lands, in times of freshets, onto the lands of the plaintiff; that the same was done in total disregard of plaintiff’s rights, etc. Wherefore, the plaintiff says that he has sustained great damage and asks for damages in the sum of $2,000, and asks that the defendant be enjoined from maintaining the embankment.

I have thus restated a large portion of the petition, from the fact that it is stated in an admirable manner; the claim of the plaintiff could not, I think, be stated in more concise and accurate form than is done m the petition.

To that petition the defendant files an answer, which in the first count, is a substantial denial of each of the material allegations in the petition; there are four counts, or rather three counts numbered, and the fourth paragraph, which is equivalent to a fourth defense.

As I said a moment ago, the first count in the answer copies the material allegations of the petition and then denies each; it might as well ’have been a general denial of all of the allegations, except the building, I take it, of this embankment, because that is the effect of it. In the second defense it sets up the statute of limitations — in the third defense — by way of an excuse for the building and erection of this embankment,- it sets up that these lands are agricultural lands and that the defendant, for the purpose of protecting himself against the encroachments of the river, was compelled to construct this embankment. The fourth defense is a defense of estoppel. It alleges that at the time when the defendant was about to construct this embankment, that the grantor of the plaintiff, knowing that his land was being washed away, encouraged and induced him to make the embankment, thereby, as it is claimed by the defendant, the grantor of the plaintiff would be estopped, and the plaintiff coming in as grantee under the original grantor, would also be estopped from making any objection to the continuance of this embankment, because he had consented to and had encouraged the building of the same.

Now, so far as the matter of estoppel is concerned — taking it up in the reverse order in which it is presented — I might say, though, that there is a reply denying all the material averments and new matters set up in the answer, and the case comes to issue upon these questions. Taking up, as I said a moment ago, the allegations of the answer in the inverse order in which they are presented, I might say there is no evidence showing that the plaintiff’s grantor did anything that caused the defendant to expend any money, or perform any duties in reference to this embankment, that he would not have done, and did not intend to do, without the advice or consent of the grantor of the plaintiff; and I might say that the matter of estoppel is well presented in this case in 1 American &, English Decisions in Equity, commencing on page fifty-five. What constitutes it an estoppel ? The person sought to be estopped must do some act, or make some admission, with the intention of influencing the conduct of another, or what he has reason to believe, would influence his conduct, and which act or admission is inconsistent with the claim he proceeds now to make. The other party, too, must have acted upon the strength of such admission or conduct.

Now, Mr. Vulgamore here did not claim that he acted — that he expended any money upon the advice, consent and encouragement of the original grantor, and hence this defense must necessarily fail.

Now, going back to the other questions presented, I might say that as to the statute of limitations, the evidence here shows that the material damage to this property, whatever did accrue, accrued in 1898, and that (the action here was brought in that year; so that no question, from the ■evidence here, no question was made for our consideration, upon that question of the damage of 1898 — yes, and 1897, also. Now, so far as— 'coming back now to the main controversy that exists and that was presented to us in this case: It is, whether or not the defendant, at the time he constructed this embankment, constructed the same as a reasonable and ordinary man should with regard to the property of his neighbors, and so far as the evidence is concerned, before us, there is no substantial conflict as to what he did, when he did it, and as to the restilts to the land of the plaintiff. ■' There was quite a large number of witnesses testified before us, men of standing and character, as it seemed from their evidence, no one desiring, as it seemed, to vary from what was the exact truth; so that it becomes, not a question of a contention, you may say, between the two sides as to the evidence presented, but it is a question on the evidence presented to us, as to what are the legal rights of the parties ; because, as I said a moment ago, the facts in the case are so overwhelming, in one way, that they are substantially to be said to be admitted. In other words, the defendant, in his defense, did not introduce any .evidence to contradict and vary the statements made by the plaintiff. Then it presents a question, as I said — more of a question of law on the evidence that is substantially admitted, than it is a question of evidence.

Now, the question as it is presented to us — we think we are justified in making the following findings:

(1) We find from the evidence, that the defendant constructed his embankment substantially as averred in the plaintiff’s petition.

We also find from the evidence, that three acres of plaintiff’s land were destroyed in 1893; three acres in 1897, and twenty acres in 1898.

The embankment of the defendant caused a great part of the damage to plaintiff’s land.

Counsel will understand, and ever}’- one who heard the evidence will understand, as well as the court, that we cannot say the whole of the damage was done by reason of this embankment, but the greater part, the greater part of this damage, we think from this evidence, was produced in 1898 and 1897, by reason of this embankment — and also in 1893.

That each and all of the floods that caused the damage to plaintiff’s land were extraordinary floods; that no damage occurred to plaintiff’s land at any of the ordinary or usual floods, by reason of the construction of the said embankment of the defendant.

That is the only one of the findings, so far, that we have any doubts at all about. There was one or two of the witnesses, Mr. Barnes, for instance, I think, H. C. Barnes, testified in answer to a question by counsel for the plaintiff — he said that the embankment turned the water toward the land of the plaintiff in usual and ordinary floods, as well as the extraordinary floods; but when we look at all the evidence, including the plaintiff’s, we find that no witness testified to any damage having occurred at any of the times, other than the floods of 1893, 1897 and 1898. The plaintiff himself expressly states that the first damage that he noticed, on his land, was at the flood of 1893. .Then he gives the amount of the land that he thinks he lost in 1893, and then says that at the recurring flood of 1897, he lost about the same amount; then he says that the disastrous flood of 1898 destroyed about twenty acres of his land. So that, I say, while some of the testimony would seem to indicate that in the ordinary floods, the current of the river was diverted toward the land of the plaintiff, yet, from the evidence, there is nothing to show us, or convince us that any damage occurred because of the construction of this embankment, at any of the usual and ordinary floods.

We further find that at the time defendant built his embankment he could not have reasonably anticipated the said flood that did the damage to plaintiff's land, and the defendant used reasonable and ordinary care in the construction of said embankment.

Now, from the evidence, we think we are fully justified in making these findings, from the fact that there is no evidence before us that prior to 1884, any flood that had ever occurred since'any of the inhabitants could recollect, had been so high as the flood of 1884 — and there is a singular coincidence that in about nine years after that flood, another flood occurred that came within about six inches of it, and that in 1897 another flood occurred that was near the same in height, and that in 1898, as the principal part of the evidence shows, that the river was six inches higher than was ever known before; so that within fourteen years of each other, four floods had occurred that were higher than, so far as appears from the evidence before us, any flood that had ever occurred in the valley, and we think we are justified in, as I said a moment ago, in finding that these four floods were extraordinary floods; not the usual and annual floods that might be anticipated from year to year, in the spring and fall, but they were extraordinary floods, unusual. The petition avers that the 1884 flood was an extraordinary flood, and that the other, as I said— one of them being considerably higher, the 1898 flood — and the others so near it in height — we think we are justified in saying that they were all four extraordinary floods and could not be anticipated by a reasonable and ordinary man, situated as this man Vulgamore was.

Now, that raises the question of whether or not Vulgamore is liable, on these findings of fact, as produced to us, and as the law governs, in cases of this kind, and we are cited to a large number of authorities, a few of which I propose to refer to briefly.

Counsel have ably presented this case to us, and as I said awhile ago, the facts are substantially admitted; so it becomes a question of law, and we have been greatly aided by the able presentation of the matter by counsel, and we have arrived at a conclusion, which is as satisfactory, probably, as conclusions usually arrived at in cases of this kind,

Now it is insisted, by counsel for the plaintiff, taking the circumstances under which he built this embankment, that Vulgamore is not only liable for the damages that occurred by reason of the ordinary and usual floods, but that he is liable for-those that occurred by reason of the extraordinary floods, and that is the question, and we are cited to a case in 139 Illinois, which, at the reading of the case, seemed to us to be a very strong case in favor of the plaintiff, and if the rule there laid down were to govern in cases of this kind, then it should be substantially followed; but I might say that we think that when the case is read carefully, a distinction may be drawn between the facts, as found in that case, and the facts that are found before us in this case. It is a case of the Ohio & M. Ry. Co. v. Ramey, 28 N. E. Rep. 1087, 1088 [139 Ill. 9; 32 Am. St. Rep. 176], The railway company, in constructing and maintaining embankments, bordering upon a watercourse, is bound not only to anticipate and provide for the flow of the ordinary rise and fall of the waters during the year, but also, for the floods and freshets which occur at long periods, or intervals, and which, from having been known to occur, may reasonably be expected again.

“Although a rainfall may be more than ordinary, yet, if it be such as has occasionally occurred, and it may be, at irregular intervals, it is to be foreseen that it may occur again, and it is the duty of those changing or restraining the flow of water, to provide against the consequences that will result from it.

“In an action against a railway company to recover damages for the obstruction of the flow of water by an embankment, and thereby overflowing upper lands, the question will not be whether the defendant has sufficiently provided for the escape of the water of ordinary floods, but, has it provided for the escape of the waters of'such unusual or extraordinary floods as it should have anticipated would occasionally occur in the future, because they had occasionally occurred at intervals, though of irregular duration, in the past.”

Now, let us apply the facts of the case to the case as found here, on the evidence in this case.

In that case, the court puts the decision upon the ground that they were not only to provide, in their embankment, against the floods that may usually occur, but such floods as extraordinary floods that occur occasionally, and that have occurred in the past.

Now, how stands the case at bar? In this case Vulgamore had one flood, as appears from the evidence, to guide him; that was the flood of 1884. No evidence showing that this Scioto river had occasionally, at long intervals, even, raised to the height that it did in 1884, therefore, he had but one of what may be generally known in this Scioto and Ohio valley, as one of the most remarkable floods that has appeared since the white man occupied the country; so that, as I say, he had nothing to indicate to him, excepting the flood of 1884.

Now, what should a reasonable man do, knowing there had been one such flood — when he went to construct, or undertook to construct a levee or embankment? Why, we will all see readily that an ordinary, prudent man would not be required to anticipate the flood of 1884. Why ? Because, as I said, from the evidence before us, no such flood had ever; appeared before; therefore, he would not be required, as a prudent man, to guard against a flood of that kind in the future.

Now, some other cases were cited to us, a large number, as I said a moment ago, and I only propose to read extracts from a very few of them. Another case cited and relied upon by counsel, is Salisbury v. Herchenroder, 8 Am. Rep. 354 [106 Mass. 458].

“Defendant suspended a sign over a street in Boston, in violation of a public ordinance of the city. During an extraordinary gale, the sign was blown down and a bolt, part of the fastenings, was hurled against plaintiff's window, causing damage, for which an action was brought: Held, that defendant was liable, notwithstanding due care was exercised in constructing and fastening the sign.”

Now, I might say, without reading the opinion of the court in that case, that that is put upon the ground that the party was violating an ordinance; he was violating a rule or law of the city, and therefore he could not defend himself even against an act of God, because he had not any right, as a man has on his own land, to make an obstruction. In other words, a man building an embankment upon his own land is not violating any law of the land, but he may so injure his neighbor that he may be responsible for damages.

Another case is Gray v. Harris, 9 Am. Rep. 61 [107 Mass. 492] :

“One who builds a dam across a stream is bound so to construct it that it will resist not only ordinary freshets, but also, such extraordinary floods as may be reasonably anticipated.”

Now, I do not recollect, in reading that case, whether the ground on which the court put that was, that floods had occurred in the stream at various times before, but if so, that he must use such care in the construction of a dam across the stream, to protect it against extraordinary floods, as a reasonable man would do, under the circumstances.

Now, those are all the authorities I care to refer to, on the part of the plaintiff, in apposition to the seeming authorities of the plaintiff; 'but, as we think, are not directly antagonistic to the authorities cited by the defendant in the case, because we think the Illinois case, where the flood occurred before, at previous times — that might be considered an ordinary and usual flood, although the court there calls that extraordinary.

Now, the first case that I desire to read something from, is Kansas City, M. & B. Ry. Co. v. Smith, 17 So. Rep. 78, 81 [72 Miss. 677; 27 L. R. A. 762; 49 Am. St. Rep. 579]. This is a case from Mississippi, and there are many things in it that are similar to the case at bar. I shall read but a small portion of it.

“The rules governing the rights and duties of individuals in reference to waters rest upon principles which underlie very many other property rights. At last they depend upon the two legal maxims that one may make such use as he wills of his own, and that he must so use his own as not to impinge the legal rights of others. As to the surface water of streams flowing along their channels, general rules have been formulated which are usually applicable, and under which the relative rights and duties of parties may be adjusted; but to apply these rules to waters of a radically different class is to measure different conditions by a single standard. To say that flood waters are surface waters and may always be dealt with as such, or that they may be fenced against as may be waters of the sea, regardless of consequences, would be to give to one riparian owner the power and right of benefiting and preserving his own property at the direct expense of another.”

This was a case against the Kansas City & Memphis Railroad Company.

“The roadway of the defendant company is not shown to be of sufficient height to obstruct the waters of Tdwn creek, so as to deflect them upon the land of the plaintiff at time of ordinary or periodically recurring floods. The witnesses spealc of the floods of 1874, and of those of April and July, 1892, as having been the highest ever'known. It is not claimed by the plaintiff that his lands would not have been submerged by the flood of July (for injury by which he sues) if no railroad had 'been built in the valley. His contention is that the water was somewhat deeper on his land than it would have been, that it remained longer, and flowed with stronger current. But it must be borne in mind that all the evidence relates to an exceptional condition of affairs, to a flood equalled but twice, and exceeded but once in the memory of the inhabitants; and against such contingency, it would, in no event, be negligence not to provide.”

In that case, I might say that there had been three floods of extraordinary height, in this Town creek, which was a stream almost as wide as the Scioto river; it was testified to that it was one hundred and twenty feet wide there at this place, at ordinary height, emptying into the Tombigby river, and the court say that, although three of these extraordinary floods occurred prior to the construction of this road, two of them occurring in one year, that that was not sufficient notice, so that an ordinary man would not have constructed the embankment as the railroad company did.

Now, the next case that I refer to, is Borchardt v. Boom Co., 54 Wis. 107 [41 Am. Rep. 12; 11 N. W. Rep. 440] :

“A corporation authorized by the legislature to construct a pier in a navigable river, is not liable for the flooding of lands by an extraordinary freshet, not reasonable to have been anticipated and guarded against, although, to some extent occasioned by the pier — the pier having been properly constructed.” See also Black River Improvement Co. v. Booming & Transp. Co., 11 N. W. Rep. 443 [54 Wis. 659; 41 Am. Rep. 66].

Then the next case to which I refer, is Bell v. McClintock, 34 Am. Dec. 507 [9 Watts 119], a Pennsylvania case. I shall only read the syllabus:

“The owner of a dam on a stream is liable for damages caused thereby to private property on such stream, by the ordinary and expected floods of the season, but not for those occasioned by extraordinary and unexpected floods. This principle applied in the case of a stream made navigable by law.”

The authorities cited in Village v. Kallagher, 52 Ohio St. 183, 186 [39 N. E. Rep. 144], have some bearing upon the principle of the question, but it is not a case concerning the damming or turning of water; it is a case that “A municipal corporation is not an insurer against accidents upon its streets and sidewalks: It is held to reasonable care only in the keeping of its streets free from nuisance; impracticable things are not required, nór is a municipality bound to anticipate improbable or unprecedented events, and provide against their possible results. To be bound to provide against unprecedented storms, therefore, is to be required to use extraordinary, or the highest degree of care. Hence, in this case, if the bill board was not in itself, a nuisance, i. e., if it was so placed as not to interfere in any manner with the ordinary use or of travel on the streets or sidewalks near or about it, and was constructed in a good, substantial manner, so that it was safe and free from danger, under all ordinary circumstances, and its fall was caused by an extraordinary or unprecedented wind storm, the village could not be held liable.”

' Now, I think the principle in this case is decided in the case of Railway Co. v. Carr, 38 Ohio St. 448 [43 Am. Rep. 428], and I shall only read the third paragraph of the syllabus:

“When such a change is made without fault or carelessness, and a levee on the opposite bank is- broken and washed away by an unusual, but not unprecedented flood, whereby the crops growing on adjacent lands are destroyed4 it is damnum sine injuria, notwithstanding a sand bar in the river at the new mouth of the creek, caused by the change in the creek, may have contributed, in some degree, to the damage.”

Now, the case in Ohio that w-e have felt controlled by, more than any other one, considering it the strongest authority here when the case is fully investigated, is the case of Crawford v. Rambo, 44 Ohio St. 279 [7 N. E. Rep. 429], and I will only read the syllabus of the case; that was a case where the two owners, one of them on the westerly side of the Muskingum river, and the other on the easterly side, had lands that would adjoin, had it not been for the river. The one on the westerly side constructed an embankment, by which it was claimed by the plaintiff, the one on the easterly side, that it threw the water over onto him, and damaged and washed out and destroyed his land, somewhat as in the case at bar.

■ “The owner of land situate upon a river, or other running stream of water, has the right to construct embankments thereon for the purpose of protecting it from the currents of the stream, or otherwise benefiting it, subject to the duty of so constructing the same as not to occasion material injury to the lands of others situate upon the stream, where the same may be avoided by the exercise of ordinary care, intelligence and foresight.

“It is his duty, in the first instance, to exercise such prudence and care as an ordinarily careful and intelligent man might have exercised, as to whether his proposed embankment would cause material injury to the lands of his neighbor at the time of such floods as might reasonably be anticipated at any season of the year.

“By material injury must be understood, an injury resulting in damages of a substantial nature; not merely nominal; and which are, in some cases, awarded to prevent a wrong from ripening into a right by lapse of time. The use of streams and their water is, among riparian proprietors, a matter of common right, and. an invasion of the individual right of one, cannot be appreciated until some act is done by another in excess of the common right.

“Where a riparian owner constructs an embankment upon his own lands, that occasions substantial injury to the lands of a neighbor upon the stream, and which might, at the time, have been anticipated by a man .of ordinary prudence and intelligence, he is liable in damages for the injury as occasioned. And where it appears from its subsequent action, though not at the time of its construction, that it does and will continue at ordinary floods, to do injury to his neighbor’s lands, it then becomes his duty, to abate, or so modify it as to avoid such injury, and he is liable in, damages for an omission to do so.

“Where an adequate remedy, in the way of damages cannot be had, the court may, in a proper case, order the abatement of an embankment that occasions substantial injury to the lands of another.”

So that, take all the authorities — and we think these authorities cite a large number of the cases — if we have found the facts from the evidence here, correctly, we think that the law, as applied in Crawford v. Rambo, supra, covers the case at bar, and therefore, the petition of the plaintiff will be dismissed at his cost.

We have found — as suggested by my associate — thus substantially upon the evidence of the plaintiff. This case was up before us once before on error, but we do not feel at all controlled or governed by whatever we might have thought or decided at that time. We have investigated the case anew, as if it had never been presented to us. We think this — if this embankment had been constructed after the recurrence of two or three of those floods, we would not have had any doubt in holding that those might be considered as ordinary floods that might be anticipated.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    TRIAL.
    [Hamilton (1st) Circuit Court,
    1903.]
    Swing, Giffen and Jelke, JJ.
    Harry Fennen v. State of Ohio.
    The Qualification of an Interpreter a Matter of Judicial. Discretion.
    The determination of the qualifications of an interpreter is peculiarly within the sound discretion of the court and it is for the court to determine the ■character of the testimony which will satisfy that discretion, and such finding is conclusive.
    Robert C. Pugh and Vincent Schwab, for plaintiff in error.
    Froome Morris, contra.
   PER CURIAM.

Verona Percel spoke some dialect of the Polish language which the official interpreter could not understand and' translate. Mary Batsche was called and examined by the court as to her qualifications, which the court approved, and thereupon she was sworn to act as interpreter.

It is complained that she was not sworn on her voir dire, that is before answering the court’s interrogations as to her qualifications.

The passing upon the qualifications of an interpreter is peculiarly within the sound discretion of the court, and this being so, it is for the court to determine as to the character of testimony, sworn or unsworn, which will satisfy that discretion, and the court’s approval is conclusive •in the absence of a charge of abuse of discretion.

The evidence sufficiently sustains the verdict of guilty on the charge of robbery.

Judgment affirmed.


text:
    MORTGAGE.
    [Hamilton (1st) Circuit Court,
    1903.]
    Swing, Giffen and Jelke, JJ.
    McCracken v. Levi.
    Extent of Lien Acquired Under a Mortgage by an Insane Person.
    Where part of the consideration of a mortgage executed by an insane person is applied to the payment of a prior mortgage given by such person, the former mortgage is valid to the extent of the amount so applied with interest and costs.
    Enoch L. Strieker and Wilson & Wilson, for plaintiff in error.
    John Nichols, contra.
   PER CURIAM.

It appears that $830.01 of the consideration of the $1,500 mortgage went to pay off a prior mortgage upon the property of Josephine Mc-Cracken, who, it is contended herein, was not of sound mind at the time of the execution of said $1,500 mortgage.

“A mortgage executed by an insane person is valid and enforceable, so far as the consideration was for the benefit of, or on account of the mortgagor, and its lien will be limited to the extent of the amount not paid to, or for, or by the direction of such person, and also in so far as it is given to secure the antecedent debt of the mortgagor’s husband without new or other consideration.” (Superior court, general term, Force, J.) Mahoney v. Goepper, 8 Re. 154 (6 Bull. 33).

It is contended' that the first mortgage upon which the $830.01 was paid was subject to the same infirmity as the one herein being foreclosed, but this does not appear from the record.

The mortgage herein must be given force and effect, to the extent of $830.01 and interest, which with costs will exhaust the proceeds of the property, so that any question beyond that must be academic. Any question beyond that has so little substance as to make us resolve any doubt in favor of the judgment below with more than ordinary certainty.

Judgment affirmed.


author: HAYNES, J. PARKER, J.

text:
    NEGLIGENCE — MACHINERY.
    [Lucas (6th) Circuit Court,
    March 7, 1903.]
    Haynes, Parker and Hull, JJ.
    George W. Crossman v. P. & T. Degnan Sand, Dredging & Lighterage Co.
    1. Contributory Negligence of Fireman of Sand Unloading Machine.
    The fireman of a sand unloading machine who attempts to close the windows of the engine room thereof while the engine is in motion, a duty not usually or properly performed until after all machinery in the room has been stopped, is guilty of contributory negligence which will prevent any recovery by him for injuries received from the moving rods of the engine among which he falls while so occupied.
    2. Reciprocating Parts of Engine not Included in Act Requiring Shafting, etc., to be Guarded.
    94 O. L. 42, which provides that owners and operators of machinery shall place guards or casings upon all revolving wheels and shafting, and upon all belts connected with such machinery, does not include the reciprocating parts of a steam engine.
    Heard on Error.
   HAYNES, J.

This is an action brought by Crossman to recover for damages which he suffered in the employ of the defendant in a machine that they were operating on the dock, which was used for the purpose of unloading sand. Upon the trial the case was taken from the jury and a verdict directed for the defendant.

The plaintiff was an employe of the defendant as a laborer. The defendant was engaged in unloading sand from a scow it had at docks near Water street, in the city of Toledo. It used for that purpose a Macmiller machine for unloading the sand? This consisted- of a rotary wheel, communicating with the boat by a chain, an engine and boiler— two engines I think — connected with machinery outside, and was used for the purpose of taking the sand from the vessel to the dock. On the evening of the day of the injury, about the time the plaintiff was leaving for home, Degnan said to him, or asked him, if he wouldn’t go over to the building and help operate the machine, as the fireman wanted to go away. They had a load of sand which had to be unloaded by ten o’clock that evening. The plaintiff consented to go, and did go. He had before worked on that machine, and the engineer says fired before. He asked the plaintiff when he came if he knew about the business, and he said yes, he was well acquainted with it. He went over and was engaged in firing during the evening. His work brought him near the door and not to any other part of the building. He was simply moving coal from a box by the door into the furnace. It was his duty, as alleged in the petition, after the work was done, to close certain windows or openings in the building. There were four of them. They were kept open for the purpose of ventilation, and closed by sliding wooden doors. Instead of waiting until the work was completed and closing these after the work was finished, the plaintiff, when there were some two buckets to be moved from the boat to the dock, started out to close these windows, evidently thinking to have them closed by the time the work was practically done. He went to the other side of the building and stepped upon something to reach up to the door or window. That particular window bound a little, and thereupon he stepped up higher on a ladder, and from there, with one foot at least, attempted to step over onto a sh^lf that was about five, feet above the floor, immediately over some part of the machinery of the engine, and he stepped his foot on some movable substance, and his foot turned a little, and slipped, and he fell down in the machinery, and one of his legs at least went down through the floor where there was an opening at that time, between the connecting rod and what is called the eccentric rod, and the motion of the machinery injured his leg, and there was a little key on one side of the rods that was countersunk into the machinery that cut his knee. They stopped the machinery, of course, immediately, and he was taken out. The result was, he brought this suit.

The petition sets out that the defendants failed in a great many respects in the performance of their duty towards this plaintiff: They omitted guards to this machine, and they failed to furnish a reasonably safe place for the plaintiff to work; failed to furnish proper lights, and several other matters of that kind that counsel very ingeniously thought that the defendants should have done in this matter in order to protect this plaintiff.

It seems to us very clear that defendants had given him a safe place to work, if he had stayed where he belonged and continued to work until the machinery was stopped, and after it was stopped, to have then proceeded to perform the duty that was incumbent upon him in closing these windows, when in doing so there would have been no danger at all. It is very apparent, it seems to us, that this man received this injury through his own negligence and carelessness in going to a place where he ought not to have gone when the machinery was in full operation, and climbed over the machine, and stepped from one point to another,, in doing which he received the fall and injury.

The court, however, took the case from the jury on the ground that there was no negligence on the part of the defendant; that the statute which had been invoked by the plaintiff-did not apply to the machinery. We have examined this, statute and endeavored to ascertain its meaning, and also to ascertain the character of the machinery directly at the point where the plaintiff fell. The statute (94 O. L. 42) requires:

“That owners and operators of * * * all places where machinery of any kind is used or operated, shall take ordinary care, and make such suitable provisions as to prevent injury to persons who may come in contact with any such machinery or any part thereof; and such ordinary care and such suitable provisions shall include the casing or boxing of all shafting when operating horizontally near floors, or when in perpendicular 6r other position operating between, from, or through floors, or traversing near floors, or when operating near passageway, or directly over the heads of employes.” >

This man was in no way injured, as we understand the operation of this machinery, by any shaft that was in motion, at the time. Further it says:

“The enclosure of all exposed cogwheels, flywheels, handwheels, all main belts transmitting power from engine to dynamo, or other kind of machinery, and all openings through floors, through, or in which such wheels or belts may operate, with substantial railing; the covering, cutting off, or countersinking of keys, bolts, set-screws, and all parts of wheels, shafting, or other revolving machinery, projecting unevenly from and beyond the surface of such revolving parts of such machinery.”

We are unable to see where that statute in any manner relates to the machinery that was in use at this point. This covering, as we understand it, has reference to a bolt or a set-screw or some other article that projects from a revolving wheel, because, when the wheel is in motion, it might not be seen, and it might very easily catch in the clothing, or something, of that kind. But there was nothing of that kind in operation at this point, so that the statute which has been invoked does not cover the case, as we think. It is said we ought to give a very liberal construction to the statute. We are of opinion that no fair and liberal construction of the statute would be of any benefit to this plaintiff in that respect. In short, we fail to see where these defendants have been guilty of any negligence whatever in regard to the work that' was being done or the machinery that was being used and operated at that time; that they did all that prudent men would properly and fairly do. This plaintiff was sent there, and near the close of work hurried because he was evidently very anxious to get away, and undertook to do that which should have been done after the work was stopped, before it was stopped, and it was through his own act of negligence in doing this that he received his injury. The judgment of the court of common pleas will therefore be affirmed.

It is suggested by Judge Parker that even if there was any nut or setscrew there that might have contributed to this injury, there was nothing in the pleadings that covers that cause of action in any manner or form, and-it was not relied upon in the trial of the case as a ground for recovery.

PARKER, J.

There was no reference made to it, and it was not sought to be brought out in any way. It is a little difficult to get at exactly what this machinery was, or whether or not the key which fastened the connecting rod to the disk may not have been a key of a piece of machinery that required to be sunk, and as Judge Haynes says, it is not alleged as negligence.


author: PARKER, J.

text:
    PRACTICE — BILL OF EXCEPTIONS.
    [Sandusky (6th) Circuit Court,
    1903.]
    Haynes, Parker and Hull, JJ.
    Barbara Scherck v. Frank A. Knapp, Trustee.
    Statement that Bill Contains “All the Testimony” not Sufficient to Allow Review of the Evidence.
    Evidence, within the meaning of the rule that a reviewing court will not consider a case upon the weight of the evidence unless the bill of exceptions affirmatively shows that it contains all of the evidence submitted to the lower court, includes not only testimony but also documentary evidence, exhibits, and every other thing which may properly give information to the court upon the issues presented. Hence, a statement that the bill contains “all of the testimony” in the case, is not sufficient.
    Jesse Vickery, for plaintiff.
    Parkhurst & Vickery and Richards & Heffner, for defendant.
   PARKER, J.

This is a proceeding brought to obtain a reversal of an order of the court of common pleas, refusing to discharge an attachment. It js contended that upon the evidence submitted to the court below, it should have discharged the attachment, and that it erred in not doing so.

To present that question, of course it is necessary for the plaintiff in error to bring up the evidence by a bill of exceptions, and that, he has attempted to do.

It'is contended by defendant in error, that the bill of exceptions does not show that it contains all of the evidence submitted upon the hearing of the motion to discharge the attachment.

The hill of exceptions, after setting forth various affidavits and testimony in other forms which was submitted, contains the following statements:

“And thereupon the defendant rested. The foregoing is all of the testimony that was offered by either party to said action to discharge said attachment.”

It is the law generally, throughout the Union, and is settled in this state by a long line of decisions, beginning as far back as Hurley v. State, 6 Ohio 399, that where a court of error is asked to set aside an order or judgment of a lower court, upon the ground that it is not sustained by sufficient evidence, or is against the weight of the evidence, the bill of exceptions must set forth affirmatively, that it contains all the evidence submitted to the lower court. This must appear expressly, and it must appear from the bill of exceptions. It cannot be made to appear otherwise, and therefore the reviewing court is not at liberty to regard statements of counsel or other extraneous evidence, that the bill of exception in truth contains all of the evidence submitted to the lower court.

The question presented here, is whether a statement that the bill of exceptions contains all the testimony submitted, is equivalent to .a statement that it contains all the evidence submitted.

Our code does not distinctly define the terms “evidence” and “testimony,” and yet there is some language in the code that we think throws a side light upon the question.

Section 5305 Rev. Stat., the sixth clause, provides that a new trial may be granted on the ground, “That the verdict, report, or decision is not sustained by sufficient evidence, or is contrary to law.”

There the term “evidence” is used as comprehending every form of evidence, every form of admissible information to a court, and includes testimony as well as documentary evidence, exhibits, which may be of a corporal character, and every other thing which may properly give information to the court upon the issues presented.

Chapter 3, Title 1, Division 3, of the code, dealing with “evidence” has various subdivisions; one on the competency of witnesses; one on the means of securing attendance; one on the mode of taking testimony and exceptions to depositions; one on the admission and inspection of documents, and one on variances.

In the special division on the mode of taking testimony, we find this in Sec. 52'61 Rev. Stat.:

“The testimony of witnesses may be taken.
“1. By affidavit.
“2. By deposition.
“3. By oral examination.”

Section 5262 Rev. Stat., provides that:

“An affidavit is a written declaration under oath, made without notice to the adverse party; a deposition is a written declaration under oath, made upon notice to the adverse party; and oral testimony is that delivered from the lips of the witness.”

So that the word “testimony,” by these two sections and other provisions of the statute is made to include not only the oral statements of witnesses in court, but the statements of witnesses by way of affidavit or deposition.

The fourth subdivision of the chapter treats of the subject of the admission and inspection of documents in a way to indicate that in the minds of the codifiers, documentary evidence would not properly come under the description of testimony, and nowhere in the statutes, or in the reports do we find such use of the word “testimony,” as would include anything but the statements of witnesses either by way of affidavit or deposition or orally.

We are of the opinion, that the word “testimony” is a word which does not include documentary evidence, or various forms of evidential matter, such as photographs, etc., which may be introduced as evidence, and which must be made a part of the bill of exceptions, if it is to include all the evidence submitted.

Therefore the statement that the bill of exceptions contains all the testimony submitted, does not necessarily carry with it a statement that it contains all of the evidence submitted.

This bill of exceptions shows that there was oral testimony, -and testimony in the form of a deposition, taken upon some other occasion, but read upon this hearing, and that various affidavits were submitted; that this testimony (for it all comes under the description of “testimony,”) was introduced, and was considered by the court, but for aught that appears there may have been a very great deal of other evidence of a very persuasive or conclusive character, which was considered by the court.

We are not disposed to be technical or to place a hindrance in the .way of bringing cases into this court for review. We have been disposed to be liberal in the consideration and decision of questions presented to us along this line, and yet, in view of the repeated utterances of our Supreme Court upon this question we do not feel at liberty to- hold that a statement, that a bill of exceptions contains all the testimony submitted, is sufficient.

In Hall v. Reed, 17 Ohio 498, in the syllabus the word, “testimony,” is used as the equivalent of evidence, but that was at a time when the syllabus was not prepared by the court, and in looking into the opinion we find that the court used the word, “evidence.”

In Pittsburg, Ft. W. & C. Ry. Co. v. Probst, 30 Ohio St. 104, the court says that a bill of exceptions must show that it contains all the testimony in the case. In that case, the only question was about the omission of certain testimony. While it is true that it-must contain all the testimony, it is equally true that, as said in a great many decisions, it must also contain all the evidence, and we find no decision or no utterance of any court that supports the contention that the statement, that it contained all the testimony, would be sufficient.

In Miller v. Fuller, 52 N. E. Rep. 101 [21 Ind. App. 254], decided by appellate court of Indiana, in 1898, a part of the syllabus reads:

“A statement in a bill of exceptions ‘that this was all the testimony given in the cause’ is defective, ‘testimony’ and ‘evidence’ not being synonymous.”

And in the opinion the following cases are cited as supporting this holding. Kleyla v. State, 13 N. E. Rep. 255 [112 Ind. 146]; Harvey v. Smith, 17 Ind. 272; Brickley v. Weghorn, 71 Ind. 497; Sandford Tool & Fork Co. v. Mullen, 27 N. E. Rep. 448 [1 Ind. App. 207]; McDonald v. Elfes, 61 Ind. 279; Gazette Printing Co. v. Morss, 60 Ind. 153; Ingel v. Scott, 86 Ind. 518; Ehrisman v. Scott, 32 N. E. Rep. 867 [5 Ind. App. 596],

In Wyoming L. & Tr. Co. v. Holliday Co., 24 Pac. Rep. 193, 194 [3 Wyo. 386], decided by the supreme court of Wyoming in .1890, the syllabus reads in part as follows:

“The sufficiency of the evidence to sustain the finding will not be reviewed on appeal, where the bill of exceptions only purport to contain ‘All the testimony offered by either party.’ ”

And in the opinion this is said:

“Testimony embraces only the declarations of witnesses made under oath or affirmation (Rev. Stat. Wyo., Secs. 2609, 2610; Bouvier Law Dict., title ‘Testimony,’) while ‘Evidence, in legal acceptation includes all the means by which any alleged matter of fact, the truth of which is submitted to investigation, is established or disproved’ (1 Greenleaf Evidence, Sec. 1). Testimony is but one of the several instruments of evidence, and cannot be considered the equivalent thereof; for evidence embraces not only testimony, but also private writings and public documents.” Abbott’s Law Dict., title ‘Testimony;’ Thompson Trials, Sec. 2784; Central Union Telephone Co. v. State, 12 N. E. Rep. 136 [110 Ind. 203].

These cases are in point, and sustain the contention of counsel for defendant in error, and the views of this court hereinbefore expressed, and we are cited to and find no authority to the contrary.

Because it does not appear affirmatively in this bill of exceptions thát it contains all the evidence submitted upon the hearing, we feel bound to isustain the objection, and we must decline to review the decision of the court below upon the weight of the evidence.

And no error otherwise appearing, the judgment of the court below is affirmed.


text:
    LANDLORD AND TENANT.
    [Lucas (6th) Circuit Court,
    February 3, 1902.]
    Haynes, Parker and Hull, JJ.
    Reuben J. Lent v. Charles F. Curtis.
    1. Facts not Constituting Res Judicata.
    An action by a lessee of lands to recover from the lessor the value of a building erected by him thereon, under a covenant in the lease by which lessor , agreed to purchase such building at the end of the term, is not res judicata for the reason that the facts constituting such cause of action were set forth in a petition by lessee to enjoin lessor from proceeding with an action in forcible detainer to recover possession of the premises, on the ground that certain defaults of the lessee had created a forfeiture 'under the lease, which petition, after a hearing upon the merits, was dismissed generally without any saving clause.
    2. Lessor May Recover Possession Without Performing Covenant to Purchase Buildings. 4
    A lessor of land may proceed to recover possession of the demised premises by forcible detainer, notwithstanding any claim which the lessee or a trustee for his creditors may have under a provision in the lease by wbjch the lessor agrees to purchase a building which lessee has erected upon the land, and need not go into a court of equity to have such a claim adjudicated before seeking to recover possession of the premises.
    8. “Term” in Covenant to Purchase Buildings Defined.
    Where a lease provides that the lessor shall purchase, at the expiration of the term, all buildings which lessee may have erected upon the land, the word “term” refers to the time provided by the lease for the lessee’s term to expire if there is no default, and no right of action accrues to the lessee upoa such covenant to purchase until that time.
    Heard on Appeal.
    Hamilton & Kirby and J. S. Wirtman, for plaintiff.
    W. S. Thurstin, for defendant.
   PARKER, J.

This case is here on appeal. It was brought in the court of common pleas of this county in the year 1891. It has been dragging along for something over ten .years for some reason not explained, but it has but recently come into this court.

It is an action upon the part of Mr. Lent, who was at one time a tenant of Mr. Curtis, and one Peter H. Birkhead, to recover the value of a certain building which he erected uppn premises that were leased to him by them; and conceding that they would have certain claims against him to offset in a measure his claim for the value of the building, he asks for an accounting, and a judgment for the remainder.

It appears that Mr. Lent became the tenant of Curtis & Birkhead ■of a vacant lot on Summit street, in this city, under a lease dated March 25, 1875. By the terms of the lease, it was let from July 1, 1875, to July 1, 1890. Mr. Lent was to pay a rental of $1,000 per year, payable in quarterly installments; but the lease contains a provision that at the expiration of five years there shall be an appraisement of the premises exclusive of the building which Mr. Lent agreed to put upon the lot, and that thereafter he shall pay for the succeeding five years at a rate equal to six per cent, upon the appraised value of the premises; provided, however, that the rent shall not fall below $1,000 a year. And there is a similar provision as to the next succeeding period of five years, beginning with 1885. The lease contains a provision as to the erection of a building upon the premises, and as to compensation therefor at the expiration of the term, which I shall read:

“Said party .of the second part agrees to improve said premises by erecting a building thereon at a cost,of not less than $6,000, said building to be completed by the first day of September, 1875, or within a reasonable time thereafter, the foundation of which said building shall be lowered' in the ground to a depth equal to that of the foundation of the adjoining building. It is further agreed by and between the parties, and the said parties of the first part (being the lessors) do hereby obligate themselves to purchase of the second part, his executors or administrators, at the expiration of said term, all the buildings which may have been made, erected and placed upon said premises by the party of the second part, and which shall at that date be suitable for business purposes, at a price equal to seventy per cent, of the actual appraised value of the same; said appraised value to be determined by three disinterested persons, to be selected in the manner aforesaid, the decision of any two of whom shall be considered final.”

“To be selected in the manner aforesaid” refers to the method provided for the selection of appraisers to fix the rental value of the premises. These appraisers are to be selected in the same way, one by the lessee, one by the lessors, and the third by the two thus .chosen. Another part of the lease to which we shall have occasion to refer is that providing for the termination or forfeiture of the lease in the event that the lessee does not comply with certain conditions. That provides in part as follows:

“And it is further understood and agreed to, that if the said party of the second part shall fail to pay the rent aforesaid as the same shall become due and payable, according to the covenants aforesaid, and shall fail to perform any of the covenants and conditions on his part to be kept and performed, it shall and may be lawful for said party of the first part to re-enter and take possession of said demised premises, and expel said party of the second part, his heirs, executors or assigns, therefrom. And it shall not be necessary for the said party of the first part, or any other person in their behalf, to make demand for the payment of said rent at the time it shall become due and payable or at any other time to entitle them to re-enter, any rule in law or equity to the contrary notwithstanding.”

The lease contains another provision to which I desire to make reference, to the effect that the lessor shall have a lien upon the building for the non-payment of rentals, taxes, assessments, etc., that reads as follows:

"It is also agreed that the party of the second part, in addition to the rents aforesaid, shall pay all taxes and assessments which may be levied or assessed upon said premises, on or after the first day of January, 1875, except payment of installment of said taxes for December, 1875, as the same may from time to time become due and payable, and that said taxes and assessments, together with the rents aforesaid to become due, shall at all times constitute a good and valid lien in favor of the parties of the first part upon the said improvements to be erected hereafter by the party of the second part upon the premises aforesaid; it being understood that the moneys to be paid for the sidewalk now laid are to be paid by the parties of the first part.”

Immediately following this is the clause which I have read, providing for the erection of the building, and for the payment of seventy per cent, of its value in a certain contingency.

In the case at bar a petition, answer and reply have been filed, making up certain issues; and the question now submitted to us, after hearing certain evidence, is whether we should require this accounting. Our finding upon this occasion will not he the basis of a final judgment or a final order; but by agreement of the parties, we are called upon to determine this preliminary question, in accordance with the principles of a court of chancery, in order that the parties may know how further to proceeld.

It appears from these averments and from the evidence adduced that Mr. Lent went into possession of the premises under the lease, and. erected a building upon them, being a substantial structure, designed for a theater, or for performances of some .description, and that in this enterprise he became financially embarrassed, and was unable to pay all of the bills that he made in putting up the building. It appears that he started in to erect a building to cost $6,000 or $7,000, and that it cost him perhaps more than twice that, and he was not able to pay the contractors and material men. The result wasTh^t an action was instituted to foreclose mechanics’ liens. \ The lessees were made parties to that action, and by way of answer and cross-petition they set up their claim for the accrued rents, and their lien as a first lien upon this building, as provided in the lease, and the property was brought to sale under a decree of foreclosure. The property was bid in by Mr. Maples, as a trustee for all of the lienholders, excepting the lessors. The claim of the lessors that had then accrued for taxes and assessments, etc., was paid from the proceeds arising from this sale, and $2,500 of rent then delinquent was paid from the proceeds. The necessary funds to pay the costs and to pay the claims of the lessors, appear to have been raised by these other lienors, perhaps in the proportion of their respective claims; and then and thereafter Mr. Maples held the title to the property thus obtained upon foreclosure, which, wás, I should say, the leasehold interest, and whatever interest in the building under the foreclosure was held by Mr. Maples as trustee for these various lienors in the proportions of their respective claims on account of labor and materials and on account of the funds advanced to discharge these costs and the claims of the lessors. Subsequently a Mr. Norton succeeded to the title and position of Mr. Maples, as trustee. Still later it appears that the plaintiff here, Mr. Lent, undertook to redeem, or reinstate himself, by satisfying the claims of these lienors (or some of them, it does not appear that he acquired the interest of all) by taking from them assignments of their respective claims.

After this foreclosure sale — whether before or after the assignments, that I have mentioned, to Mr. Lent, is not clear, and is perhaps immaterial — an action of forcible entry and detainer was instituted by the lessors against the trustee, then Mr. Jesse S. Norton, b> obtain possession of the premises, in consequence of default upon his part in payment of rent that had accrued after this $2,500 had been paid — rent that had accrued after the foreclosure sale — and also on account of a violation of the liquor laws of the state, which, under the provisions of the statute and of the lease, would create.a forfeiture. That proceeding having been instituted before a justice of the peace, Mr. Norton, as trustee, began a suit in equity in the court of common pleas of this ■county to enjoin the lessors from prosecuting the same. In his petition he set forth the lease, and that the building had cost a large amount of money, and conceded the default in the payment of rent, but he appeared to have the notion that the lessors should not 'proceed with their forcible detainer action until they had satisfied the claim which he asserted of seventy per cent, of the value of the building, before they should take possession of the premises, and asked in effect that.the lessors might be enjoined from proceeding with their forcible detainer suit until his claim in that respect might be adjusted and satisfied. An answer was filed by the lessors, in which they set forth the defaults. The issues were made up, and the case appears to have been submitted to the court upon the issues thus framed, and the petition of the plaintiff was dismissed generally upon the merits. Thereupon the lessors proceeded with their forcible detainer suit, with the resrjlt that it was found by the justice that the trustee, Norton, was in default in both of the respects claimed; that he had violated the liquor laws and the terms of the lease, by permitting the unlawful sale of liquor upon the premises, and he had made default in the payment of rent. Judgment was entered against the defendant, a writ was issued, and the defendant was dispossessed, and the lessors went into possession of the premises.

These various suits and proceedings were all instituted within a few years after this lease was executed — the foreclosure suit I think in 3876, the forcible entry and detainer proceeding and the suit in equity following upon that within a year or two after — and they were all 'determined by the year 1880, and the lessors went into possession in 1881, and they, by themselves and their tenants, to whom they subsequently let the premises, have remained in possession ever since.

In 1881, the trustee served notice upon the lessors that he had selected an appraiser as provided for in the lease, and desired to have them select one on their part, that these two might select a third, to proceed to appraise the premises, in order that the amount of seventy per cent, of the value might be determined. Nothing was done by the lessors, in pursuance of that notice. Again in 1891 a like notice was served upon the lessors for like appraisement, with a like purpose, and this was ignored. Thereupon this suit was instituted.

]The plaintiff says in his petition that this building cost in the neighborhood of $18,000; that the amount of taxes and assessments and other claims against him on account of his defaults are much less than the .seventy per cent, of the value of the building, which would be something over $12,600; that therefore, after taking into account all lawful claims of the lessors (the defendants) against him, there woulcj be, perhaps, $10,000 due him which he ought to have, and which he seeks to recover on account of the value of the building. \

The defendants aver and contend, first, that this whole matter is res judicata; that by reason of the facts having been set forth in the petition to énjoin them from proceeding with the forcible detainer suit, by reason of the court having given consideration to the evidence therein offered, and having dismissed the case without any saving clause, but generally, the whole matter has necessarily been determined adversely to the claims of the plaintiff. And the defendants further insist that when the trustee, (into the rights of the beneficiaries of whom Mr. Lent has come,) forfeited his rights under -the lease by permitting the unlawful sale of liquor, and by the non-payment, of rent, and in consequence was subjected to the judgment in forcible detainer, he thereby forfeited and lost as well any claim which he might have had for the improvements put upon the premises.

As to this first claim of res judicata, our understanding of the purpose of that action is, considering the -averments and the prayer of the petition, that it wás simply to enjoin the plaintiffs in the forcible detainer suit (the lessors) from proceeding therein, and to require them to go into a court of equity to have all claims adjudicated, before they should seek by forcible detainer to recover possession of the premises. And our understanding of the result of the judgment in the suit in equity is, that it determined simply and solely that the lessors had a right to and might proceed with their forcible detainer proceeding, notwithstanding any claims that the trustee might have by virtue of the provision as to the building and compensation therefor. We cannot see that the court in that action was required to proceed further with the inquiry or that the court was authorized to go further with the judgment. It seems to us clear, even though the plaintiff in that equity suit might have a right to require an accounting, either then or at some time in the future, for the value of the building, that that could not defeat or affect the right of the lessors to proceed by forcible detainer to recover possession of the premises; that the lessors, as a condition to obtaining possession of the premises, were not required to settle for the 'building, but that under and in pursuance of the terms of this lease, upon default in payment of the rental and on account of the violation of the liquor laws, the lessors at once had a right, which they might at once enforce, to recover possession of the premises, and that this right was wholly independent of any .right or claim which the trustee or Mr. Lent, as his successor in interest, might have under the provisions of the lease as to the building and as to compensation for the building.

And we are also of the opinion that the court might and should have disregarded the claim of the plaintiff for relief in that equity suit, or rather denied it on the ground mat his right of action for the recovery of anything on account of the building had not accrued or matured. While it is true that the lease provides that the right to recover, or to have this seventy per cent, of the value of the building, shall accrue at the expiration of the term, and technically the term expired when default was made, and there was a forfeiture, yet we think the word “term” in this connection should be read in the light of all the provisions of the lease as “time,” and that it refers to the time provided by the lease for the lessee’s term to expire in the event that there was no default, which would be July 1, 1890; that the person in default, to-wit, the lessee, could not take advantage of his own default, and thereby cause the time for the payment of this seventy per cent, to arise earlier than that contemplated by the parties; that the right of the lessee whatever he had, under ’this provision, would not accrue until the expiration of the time limited: i. e., July 1, 1890; that the time not having arrived at the time this suit in equity was instituted, the Court might very well have dismissed the petition upon that ground; and for that reason it must be assumed, we think, that the court did proceed upon that ground and for that reason.

I desire to refer to one or two cases upon the subject of res judicata that we consider in point here. One case is that of Cramer v. Moore, 36 Ohio St. 347. The syllabus reads:

“In an action on a promissory note, the maker is not estopped from setting up want of consideration or fraud, by a judgment dismissing his petition on the merits, in an action brought to enjoin the negotiation of the note and to obtain its surrender and cancellation, although the matter set up as a defense was relied on as the ground of relief in the petition.”

What is there decided may not be entirely clear without reading somewhat more of the decision:

“The action in the court below was brought by Moore against Cramer, upon four negotiable notes given by Cramer to Allen & Hopkins, March 13, 1868, and shortly after, and before due, endorsed to Moore. Cramer answered that the notes were obtained by fraud for a worthless patent right, and that Moore was aware of the fraud, and took the notes to aid in its consummation; that at the time he took them, an injunction existed, allowed on a petition praying that the payees be restrained from negotiating them, and as a final relief, their delivery-up and cancellation. To this Moore replied, denying all fraud, either of the payee or himself, and averring that he took the notes ‘in the usual course of trade for a valuable consideration without any knowledge on his part of any infirmity in the notes.’
“He further insists that Cramer is conclusively estopped from setting up or proving any of the facts stated in his answer in relation to fraud in obtaining the notes, he having stated substantially the same facts in his action for the injunction, which, upon being prosecuted to final hearing in the district court, was dismissed upon the merits.
“On the trial the court ruled out the record of that suit, holding that it constituted no bar to the defense of Cramer.
“The trial resulted in a verdict and judgment for the defendant.
“On error, the district court reversed the judgment, on the ground that the judgment in the action prosecuted by Cramer for an injunction was a bar to his making the defense in the action on the notes.
“The object of the present petition is to obtain the reversal of the judgment of the district court.” 1

Judge White, in the opinion, says, page 348:

“The original action was brought by Moore, the indorsee of the notes, against Cramer, the maker, to recover the amounts due thereon; and the question is, whether Cramer is estopped from proving that the notes were without consideration, and were obtained from him by the payees through fraud.
“On behalf of Moore, it is alleged that Cramer is thus estopped from making defense to the notes. The ground of the alleged estoppel is, that Cramer, after the delivery of the notes to the payees, brought suit against them to enjoin the negotiation of the notes, and to obtain a decree or judgment for their surrender and cancellation; that the grounds of such relief were the same, in substance, as he now sets up as a defense to the suit on the notes; and that, after the allowance of a provisional injunction, the case was finally heard upon the merits and dismissed.”

The facts in this case from which I am quoting resemble in a general way those here; that is to say, so far as this property is involved, it is conceded here that the facts set forth in the petition in equity to enjoin the lessors from proceeding with the forcible detainer suit were the same practically as those set forth in the petition in the case at bar, as grounds for relief. It is urged that because the equity suit was dismissed generally upon the merits, therefore it is a bar to further proceedings here. To be sure these are both actions in equity; whereas, one of the actions mentioned by the court in this case was an action at law and another an action in equity; but we do not think from the discussion of the case, that that could make any difference, since the proceeding in equity was practically to interpose a defense to an action at law, to prevent its going forward.

Judge White proceeds:

“We do not question the principle insisted upon on behalf of the defendant in error, Moore, that a judgment of .a court of competent jurisdiction, upon a question necessarily involved in a suit, is conclusive in a subsequent suit between the same parties, depending on the same question; and in respect to this quality of conclusive effect upon parties and privies, the decrees of courts of equity, upon matters within their jurisdiction, stand upon the same footing with judgments at law.
“But in determining the application of this principle to the present case, regard must be had to the nature of the equitable jurisdiction called into exercise in dismissing the petition seeking the surrender and cancellation of the notes in question.
“The foundation of equitable jurisdiction is the inadequacy of the common law to afford the necessary relief. Hence, there is a marked distinction between cases where equity interferes with the remedies afforded to parties by the course of the common law, and cases where equity refuses to interfere.
“If in the present instance, the court instead of refusing to interfere and dismissing the petition, had found the then plaintiff, Cramer, entitled to the equitable relief sought, and had decreed the surrender and cancellation of the notes, the legal right of the payees to sue on the notes would have been extinguished; or if, in violation of the injunction, the payees had put it out of.their power to surrender the notes, the court could, doubtless, have followed them into the hands of any party taking them in known violation of the injunction. But such was not the finding and decree of the court. And the findings of fact in the case were only material as laying the foundation for the judgment or decree that was, in fact, rendered. * * *
“The only effect, therefore, in our opinion, of the dismissal of the petition, was to declare that the plaintiff had no equitable right to maintain the action; and that the rights of the parties remained the same as if no action had been brought, or injunction allowed, save only that the dismissal was a bar to the bringing of another action for the same matter.”

In Porter v. Wagner, 36 Ohio St. 471, I read the syllabus only:

“A judgment of dismissal of a petition for the specific performance of an agreement and of a counterclaim asking a rescission of the same, is no bar to an action for the recovery of money paid on the agreement, although the cause of action accrued before the rendition of the judgment.
“Where a judgment between the parties is relied upon as an estoppel, the question is not what the court might have decided in the former action, but what it did in fact decide, as shown by the judgment.
“A judgment is conclusive by way of estoppel only as to facts, without the proof of the admission of which it could not have been rendered.”

I refer, without reading further than the syllabus, to the case of Witte v. Lockwood, 39 Ohio St. 141:

“The general rule is that a defendant is bound to set up every defense, legal or equitable "or both, which he may have to the action, and waives those not pleaded; but where the facts claimed to afford a defense are sufficient to constitute a counterclaim, there is an exception to such general rule.
“A defendant relying solely on his legal title, in an action to recover the possession of real property, and failing, is not estopped to maintain an action to correct mistakes in the deeds under which the parties to such action respectively claimed. He has his election to rely on such equitable title as a defense or a counterclaim, or he may maintain an action, thereon.”

I A word as to the other contention, that by the forfeiture of the term, the lessor tand those claiming under him forfeit a right to the appraisement of seventy per cent, of the value of the building provided for in the lease. Counsel for defendant insists that these various covenants upon the part of the lessors and the lessee in this case are dependent ; that the performance of one on the one part, or the performance of all upon the one part, constitutes a condition precedent to the enforcement of any of the covenants of the party of the other part. But we cannot agree with this contention. | The rules for determining whether covenants are independent or dependent are very numerous, and some of them appear to be very technical; but there are certain general rules and principles well stated in 2 Parsons on Contracts (6 ed.) star paging 528:

“It is a similar question — sometimes indeed the very same question — whether covenants are mutual, in such sense that each is as a condition precedent to the other. And also whether covenants or agreements be dependent, or independent. By the very definition of them, if they are dependent, that is, if each depends on the other, the failure of one destroys and annuls the other. Or, if this dependence is not mutual, but one of them rests upon the other by a dependence which is not equally shared by the other, if that contract upon which this dependence rests is broken and defeated, the other by reason of its dependence is annulled and destroyed also. But they may be wholly independent, although relating to the same subject, and made by the same parties, and included in the same instrument. In that case they are two separate contracts. Each party must then perform what he undertakes, without reference to the discharge of his obligation by the other party. And each party may have his action against the other for the non-performance of his agreement, whether he has performed his own or not. Now the law has no preference for one kind of contract over another; nor does it, by its own implication and intendment, make one rather than the other, and still less does it require one rather than the other. It may indeed be safely said, that this question in each particular case will be determined by inferring, with as much certainty as the case permits, the meaning and purpose of the parties, from a rational interpretation of the whole contract.”

This is in a measure adopted and approved, and a decision made illustrative of the principle, in the case of Gould v. Brown, 6 Ohio St. 538. In the course of the opinion, by Brinkerhoff, J., he refers to a rule upon the subject laid down by Sergeant Williams in his note to Portage v. Cole, 1 Wms. Saund. 319:

“Where a covenant goes only to a part of the consideration on both sides, and a breach of such covenant may be paid for in damages, it is an independent covenant, and an action may be maintained for a breach of the covenant, on the part of the defendant, without averring performance, in the declaration.”

j It is contended here on the part of the defendant that it devolves upon the plaintiff to make a tender at first of all the rent that accrued during the fifteen years of the term; that all that had not been paid by him during this foreclosure sale, and the taxes and assessments, etc., he obligated himself to pay, and that this must be done as a condition precedent to enforcing this provision as to the payment for the building, and, as counsel says, as a condition precedent to the opening up of this forfeiture. We do not regard this action as in the nature of a suit to open up a forfeiture. We agree with the contention of counsel,that the forfeiture, on account of the violation of the liquor laws, is not subject to being set aside by a court of equity — that it is absolute; that by the forfeiture the term was ended; that the right of Lent and of the trustee succeeding him, to the term, and to occupy as lessee, was absolutely at an end after the judgment in the forcible detainer suit and the taking possession by the lessors; and that there could be no relief against that forfeiture. We are of the opinion that it follows, too, that the right of the lessors to recover rent for the remainder of the term ended as well. But it does not follow that the right of the lessors for compensation as damages in consequence of this default was at an end; and we are of the opinion that in the adjustment of the rights of the parties, they may* require the plaintiff to account to them and compensate them for any damage resulting therefrom’. We will not undertake at this time to lay down any rule of damages; that will remain for further consideration; but it may be said generally that it would be the loss resulting from the failure of the lessee to comply with the terms of the lease, to remain in possession and pay the rent. It may be readily seen that if the lessors were not able to rent the premises for the remainder of the period of fifteen years at as great advantage as was provided by the terms of the lease, there would be a difference on account of which they would have a claim for damages.

But forfeitures are not favored in law nor by courts of equity. The terms or provisions of the forfeiture will not be extended, nor will they be implied. The forfeiture will not be enforced beyond its strict terms. Now, the parties in drawing this instrument expressly stipulated for the result that should follow from a default, and they did not herein provide that one of the results should be the loss of the building or the loss, of the seventy per cent, interest in the building\J The provision I have already read, that in case of default in the payment of rent, or in permitting the unlawful sale of liquor, or in the payment of taxes and assessments, etc., or of failure “to perform any of the covenants and conditions on his part to be performed, it shall and may be lawful for said party of the first part to re-enter and take possession of said demised premises, and expel said party- of the second part, his heirs, executors or assigns, therefrom.” [The defendant here had a right to terminate the lease, he had a right to put an end to the term; but the provision as to the compensation for the building, according to our construction of this instrument, stands as an independent matter. There is no provision that the right to recover this seventy per cent, should be lost by any default upon the part of the lessee. We do not look upon it as being like a case where a lessee for his own convenience erects buildings, or improves, or puts in fixtures that he may not be permitted to take away or remove after the expiration of the term, there being no express provision in the lease upon the subject. But here we have a provision which discloses-that the removal of the building to be erected by the lessee was not contemplated; he had no right io remove the building in any event, even though he had performed and completed every covenant upon his part to be kept and performed. The building was to remain, and it was to be purchased at the expiration of the time, as we read the lease, by the lessors. He obligates himself to purchase it, and to pay just seventy per cent, of^its value, to be ascertained in the mode pointed out. The lessor had a right to take possession of the premises, as I have said. He regained possession by the action of forcible detainer. Having regained possession, he had a right to the use and occupation of the building, and the lessee had no right to interfere with him in the exercise of that right or in that possession. Thé lessee, by reason of his default, was bound to remain out of possession, and to wait quietly until the expiration, of the period of fifteen years. He had no remedy until that period had expired, then w.e think his remedy was that which he seeks to pursue here, to ask that the appraisement should be made, and if the seventy per cent, of the value of the building at that time was more than the damages accruing to the lessor in consequence of his default, the lessee would be 'entitled to the difference; if it was less, he would be entitled to nothing; he would be required to pay to the lessor the damages in excess of the value of the building.

It seems to us that the parties would hardly have entered into a contract of this kind with any other result in contemplation. ■ We do not think the result should be that insisted upon by counsel for the defendant here, that the lessee, after putting up a building worth $18,000 upon this vacant lot, adding that much to its value,' if he made default in the payment of a single installment of perhaps $50 of rent or less, by virtue of the forfeiture resulting from that slight default, should lose his building worth $18,000. We would not feel warranted in taking that view of the contract, unless by its express terms we were required to do so. We think that was not in contemplation, and is not the meaning of the contract, and our conclusion is, that the accounting prayed for should be made^ j

It is said that the plaintiff is insolvent while the defendant is solvent, and it is insisted upon behalf of the defendant that the balance, if there is to be ¡a balance struck, would be in defendant’s favor, and that it is a great hardship to require him to enter upon this litigation and to submit to this accounting, when the result will he to show a balance in his favor. We know of no rule under which wé can deny the plaintiff the relief he seeks simply because h? is insolvent and any judgment in favor of the defendant would be worthless. We have thought about the matter of requiring security for costs, but we know of no authority permitting us to do that. If a referee should refuse to serve' because of plaintiff's financial condition, we know of no reason why the plaintiff may not make known his inability, and insist on the court sitting here and listening to all the testimony.

\ I omitted to state that this is the opinion of a majority of the court; the court is not unanimous.

Mr. Thurstin: “I would suggest that there would be difficulty in working out this judgment which the court has rendered, and perhaps the court can aid us in respect to that. Long before the term had expired — that is, the term of fifteen years — the owner of this property had found it necessary, in order to make it available at all, to reconstruct the building, and it was reconstructed for the purpose of getting a tenant. While the court has said that the value of the building for business purposes at the end of fifteen years at seventy per cent, was to be taken, of course it would be grossly unfair to leave out the improvements which he was compelled to make upon it in order to make it available at all.”
Parker, J.: “We have considered that the value of the building, as originally constructed by the plaintiff, subject to reasonable wear and tear, is to be the basis. The plaintiff would not be entitled to any improvements put upon it subsequently by the lessors to make it available for their purposes.” • ' .
Haynes, P. J.: “I simply occupy this position in this case at present: I neither assent nor dissent; but inasmuch as a majority of the court are of the opinion that the case should go forward, I thought they should deliver the opinion, and as the case progresses I will look into it further. I am inclined to the view at the present time that the plaintiff has no equity, but I do not want to conclude myself one way or the other upon that question at the present time.” ,,,


author: WINCH, J.

text:
    BROKERS.
    [Cuyahoga (8th) Circuit Court,
    June 1, 1903.]
    Hale, Marvin and Winch, JJ.
    P. C. Joecken v. Cuyahoga Savings & Banking Company et al.
    Stockbroker not Subject to Stockholder’s Statutory Liability.
    Where a broker and member of the stock exchange, holding stock endorsed in blank with instructions to sell for the best price obtainable, offers it on the exchange and it is bid off by another broker and member who pays for it with his own check, stating that he is buying for another, but not disclosing his principal’s name, and then delivers the stock to his principal, the purchasing broker, is not at any time the legal or equitable owner of such stock, nor subject to a stockholder’s statutory liability thereon.
    Appeal from the court of common pleas.
    M. Ej. & H. H. Johnson, for plaintiff.
    A. G. Carpenter, for defendant, Carpenter.
    F. A. Henry, for defendant, Lamprecht Bros. & Co. ■
   WINCH, J.

In April, 1901, Dr. E. G. Carpenter was the owner of five shares of stock in the Cuyahoga Savings & Banking Company, represented by a certificate of stock issued. in his name. Said certificate of stock, endorsed in blank, was left for sale with H. C. Studley, a broker and member. of the Cleveland stock exchange^ with instructions to sell it for the best price he could get, and on April 9, 1901, Studley sold it at the stock exchange to Lamprecht Brothers & Company, who were also brokers and members of said stock exchange. They had an order from one R. N. Pollock to buy this stock for him, but did not disclose this fact to Studley, although they told him they were buying for a client. The certificate endorsed as aforesaid, accompanied by a memorandum as follows: “Cleveland, April 17, 1901, H. C. Studley & Co., sold to Lamprecht Bros. & Co. five shares Cuyahoga Savings & Banking Co. at 105, $525,” was delivered to Lamprecht Brothers &'Company, who thereupon gave to Studley their check for the amount of the purchase price.

Immediately thereafter Lamprecht Brothers & Company notified said Pollock that they had purchased said stock for him, and he paid them for it and it was delivered to him.

No transfer of the stock was ever entered upon the books of the banking company.

Pollock died insolvent, and the bank becoming insolvent, this action was begun to subject the stockholders’ liability to the payment of its debts.

Carpenter being made party to this suit, brought in Lamprecht Brothers & Company, and we are asked, upon the foregoing facts, to find Lamprecht Brothers & Company liable as stockholders.

Section 3259 Rev. Stat., defines the word “stockholders” and says that it shall be held to apply not only to such persons as appear by the books of the corporation to be such, but to any equitable owner of stock, although the stock appears on the books of the corporation in the name of another.

As Lamprecht Brothers & Company never appeared on the books of the company as stockholders, the only question remaining is whether or not they were ever equitable owners of stock.

It is apparent that they never had any beneficial interest in the stock. Acting under a commission from Pollock, they purchased the stock for his account and immediately delivered it to him. They were Pollock’s intermediaries on the exchange and in the negotiations with Studley. The fact that they did not disclose to Studley who they were acting for, in nowise affects the ownership of the stock, whatever rights Studley might have had against them on that account, had they or their principal refused to pay for the stock. They never held themselves out as stockholders to the bank or its creditors. From aught that appears in the record, neither the representatives of the bank nor its creditors are now claiming them to be such, but Carpenter seeks to shift his responsibility to them. Whether, in an action brought by Carpenter against Lamprecht Brothers & Company to indemnify him on his stockholder’s liability, Lamprecht Brothers & Company would be estopped from denying their obligation because they neglected to disclose the name of the principal for whom they were acting as .agent, we are not called upon to decide; but in such action it would seem that the conduct of the vendor of the stock in endorsing the certificate in' blank and offering it on the open market, to pass by delivery, without proviso as to the solvency of any possible purchaser, would work a counter estoppel and leave the vendor without equity, and it has been so held'. Boultbee v. Gzowski, 24 Ont. App. 502.

The facts in this case do not warrant the conclusion that Lamprecht Brothers & Company were ever the owners of said five shares of stock of the Cuyahoga Savings & Banking Company. Substantially the same facts appear with reference to the transfer to them of five shares of stock owned by Robert W. Boyd and ten shares owned by J. A. Melcher.

Judgment is entered accordingly, both in this case (No. 3015) and in case No. 3024.


text:
    SPECIFIC PERFORMANCE.
    [Cuyahoga (8th) Circuit Court,
    June 1, 1903.]
    Hale, Marvin and Winch, JJ.
    Albert Safarik v. Joseph Greenwald et al.
    1. Venue of Action for Specific Performance of Land Contract.
    An action under Sec. 5024 Rev. Stat., to compel the specific performance of a contract for the sale of real estate, may be brought in the county where the land lies, although no defendant is resident therein, and service may be had upon nonresident defendants by publication.
    2. Ownership of Property at Filins of Petition Does not Affect Service.
    In an action for the specific performance of a contract for the sale of real estate it is. immaterial, so far as service is concerned, whether or not the defendants were the owners of the property when the petition was filed.
    Error to the court of common pleas.
    Myler & Turney, for plaintiff.
    F. C. Friend, for defendants.
   WINCH, J.

Plaintiff filed a petition in the common pleas court of Cuyahoga county to compel the specific performance of a contract of sale of real estate situated in said county. Attached to the petition is an affidavit setting forth the nature of the action, the location of the. land in Cuyahoga county, and the nonresidence of the defendants, who, it is stated, reside in Whiting, Indiana.

While not required by statute to do so, plaintiff also filed a motion that the court permit and allow service by publication, attaching to his motion an affidavit similar to the one attached to the petition. This motion was granted, publication of notice was made for six weeks and proof thereof filed.

Thereafter defendants, appearing for the purpose of the motion only, moved the court to set aside the order for publication and “to dismiss the cause for want of proper and legal service and for want of jurisdiction as appears from the affidavit herewith.” Said affidavit is to the effect that the defendants were not the owners of the property described in the petition at the time it was filed, nor have they since been. This motion of the defendants was granted, and the case comes into this court on petition in error to reverse said order off the common pleas court.

Section 5024 Rev. Stat. provides:

“An action to compel the specific performance of a contract of sale of real estate may be brought in the county where the defendants, or any of them, reside.”

The Supreme Court, in the case of Owens v. Hall, 13 Ohio St. 571, held that such action may be brought either in the county where the land lies, or in that where one of the defendants resides.

Section 5048 Rev. Stat. reads:

“Service may be had by publication in either of the following cases:
“1. In actions under the first three sections of the last chapter, when the defendant resides out of the state, or his residence cannot be i ascertained.”

Section 5024 Rev. Stat. is the third section of the “last chapter” above referred to.

It therefore appears that this action was rightly brought in Cuyahoga county, and that the defendants, being nonresidents of the state, service might properly be made by publication. So far as service is concerned, it is immaterial whether defendants were owners of the property when the petition was filed, or not.

That fact, if proved as a defense to the action, might render a decree for specific performance ineffectual, particularly so if a third person not party to the action was in possession under claim of ownership. It may also be observed that title to real estate, or lack of title, for that matter, is not'proved by affidavit.

For error in granting the motion of defendants to dismiss the cause for want of service, the judgment is reversed.