text:
    FIDUCIARY MUST ESTABLISH FAIRNESS OF TRANSACTION.
    Circuit Court of Cuyahoga County.
    A. H. Atwater, as Guardian of Winnifred Jones, Imbecile, v. Charles P. Jones et al.

    Decided, January 30, 1902.

      Fraud and Duress — Burden Upon Fiduciary to Show Fairness of Transaction.

    If it appear that a fiduciary or confidential relationship exists between the parties to a transaction, or if it be established by evidence that one of the parties possessed a power or influence over the other, or that one was of very weak mind by reason of sickness or mental decline, the burden of proof lies upon the party filling the position of active confidence or possessing the power or influence, as the case may he, to establish, beyond all reasonable doubt, the perfect fairness and honesty of the transaction.
    (7. F. Morgan and C. 17. Fuller, for plaintiff.

      Foran, McTighe ■<& Balter and Henry <& Couse, contra.
    Caldwell, J.; Hale, J., and Marvin, J., concur.

       Affirmed without opinion, Jones et al v. Atwater, Gan., 70 Ohio State, 421.

   This action is before us on an appeal from the judgment of the court of common pleas. The action was commenced by A. IT. Atwater, as guardian of Winnifred Jones, an imbecile, against Charles P. Jones, a son of Winnifred Jones, and Ida M. Jones, the wife of Charles P. Jones, and the Euclid Avenue Savings & Banking Company; it grew out of these facts: ■

Winnifred Jones owned two parcels of property; one on Broadway in the city of Cleveland, on which were two houses, in one of which she lived with her husband during his lifetime; the other one on Marcelline avenue in the same city. The husband of Winnifred Jones died in 1896, and, not long thereafter and in the same year, she went to make her home with her son, Charles P. Jones, who resided in the property owned by her on Marcelline avenue.

In 1896 proceedings were commenced in the probate court to have a guardian appointed over Winnifred Jones, claim being made that she had become an imbecile. About January 5, 1899, those proceedings were terminated by the appointment of Ida Jones, the wife of Charles P. Jones, as trustee to care for the property and person of Winnifred Jones. Before this action was taken the probate judge had determined, and so announced to the attorneys in the case, that he could not appoint a guardian for Mrs. Winnifred Jones, as he did not regard her so far demented by reason of her sickness and age, that he should interfere by appointing a guardian. About the time that this was announced to the attorneys, Winnifred Jones made a deed of all her property, which consisted of the two parcels of real estate above referred to, to Charles P. Jones, reserving in the deed, to herself a life estate, and the consideration of the deed was that Charles P. Jones should support her during her life.

In the early spring of 1899 proceedings were again commenced against Winnifred Jones to have her declared an imbecile, which proceedings terminated in the summer of that year by the appointment of A. H. Atwater as her guardian, and in said proceedings she was declared an imbecile by the probate court of this county. Not long after the guardian was appointed, Winnifred Jones, upon the request of the guardian, went to live with her daughter, Lillie Ml. Kunker, and, in 1901, died; and after her death this action was revived in the name of Mrs. Emma Barkwell and Lillie M. Kunker.

The action, as originally brought by the guardian of Mrs. Winnifred Jones and as it has been tried in this court, is to set aside the deed of conveyance by Winnifred Jones to her son, Charles P. Jones. After this deed was executed, seven hundred dollars was borrowed on this property from the Euclid Avenue Savings & Banking Company and secured by a mortgage on the property, the papers being executed by both the grantor and the grantee in the conveyance • spoken of.

The ground on which the deed is asked to be set aside is, that Winnifred Jones, at the time she executed the same, was incapacitated from doing business on account of great mental weakness, and that there was fraud practiced upon her by her son, Charles P. Jones, and his wife.

Sometime after the execution of the mortgage to the bank, Charles P. Jones transferred these two parcels of real estate to his wife.

Winnifred Jones had, in 1896, at the time of the death of her husband, after paying the funeral expenses, some seven hundred dollars in the bank and had that amount of money when she went to live with Charles P. Jones and his wife, and, during all the time she lived there, she received the rent from the two houses on the Broadway property, they residing in the other property. At the time of the transfer, or at least at the time of the mortgage from the bank, none of this personal property remained.

The evidence in this ease shows, to the entire satisfaction of our minds, that Mrs. Winnifred Jones at the time of the execution of this deed was incapacitated from transacting any business, by reason of mental decline or great mental weakness, although not actually amounting, perhaps, to insanity or imbecility. The doctor who attended her in her last illness describes her disease as hardening of the arteries and testifies that it is one of that nature which is quite likely to be attended with mental weakness and imbecility; that the disease must have been in progess for a number of years, and that the weakening of the body under this disease had been attended by a like weakening of the mind; this testimony of the doctor accords fully with the testimony of the other witnesses. There are but very few witnesses who make the mind of Mrs. Winnifred Jones normal for a person of her years up to the time of her death. Some noticed a marked change soon after the deed was made, while others had observed this weakening of the mind, as well as of the body, from 1896. This testimony all harmonizes, with the exception of the few I have spoken of, to the end that she had a physical ailment that was constantly growing upon her (and which.finally terminated in death), that brought upon her great physical weakness, and that attending this disease was a decline of the mind. The time when different witnesses noticed this decline varies, as I have just said, some placing it as early as 1896, and some later; and her daugh■ter-in-law, Mrs. Charles P. Jones, claims, in her evidence, that she did not notice it until after the deeds were executed to her husband; but the evidence, as a whole, is conclusive that the weakening of the mind and the body had been going on together for a number of years, and is conclusive that her mind had become weak to such an extent'that at the time of the deeds being made by her to her son, she was entirely incapacitated from the transaction of business of that character.

It is important, always, in a transaction of this kind, to determine what consideration passed between the grantor and the grantee. She transferred to her son this property, reserving to herself a life estate, and the only consideration for the deed was that he was to give her support during her life.

The evidence clearly shows in this ease that Charles P. Jones, from 1896 down to the time the deed was made to him, earned no money of any consideration whatever, and this was well known to his mother; nor did he, after the making of the deed, earn any money. Whether he is incapacitated from earning money or not, does not appear in the case, nor is any good reason given why he did not during that time work and earn money. So when the mother made the deed to the son, she must have known that he was unable to support her if he continued according to his past life; and that he did not intend faithfully to carry out his part of the contract fully appears from the fact that after the deed was made, he did nothing towards earning a living either for himself or his mother, and that not long after it became necessary to borrow money, which, we have no doubt, was used for their mutual support, and the mortgage that was given on the property put in hazard her life estate.

At the time this contract was made it was evident to the son that his mother was very weak, both physically and mentally, and that her decline had been going on for some time and al that very time was seeming to gather force by reason of her disease and her years, and he knew that she could live but a very short period of time; at least, no one who knew her and her condition could form an honest expectation of life beyond a very few years.

The property he received is worth, by fair estimate, as shown by the testimony in the case, six thousand dollars. So if there was not an entire failure of consideration in the transaction, there was at least a very inadequate consideration. We think it fair in this case to say that in the mind of the grantee at the time the deed was made, as shown by his conduct prior thereto and thereafter, there was no consideration whatever. The action of the parties after the deed was made, in every way shows that it was his intention to live upon this property by borrowing money or by exhausting the rents, to which he had no right in law.

It appears, then that this conveyance was made by a grantor who was incapacitated at the time, and was without consideration in fact. That being found, it follows that the conveyance must be set aside.

Considerable was said during the argument of the case, as to whether actual undue influence or fraud must be shown in this action, and upon whom was the burden of proof. While this question is not essential to the decision of this case, still we are inclined to say something upon this question.

It has been said that fraud is never presumed, but must always be proved. It is not meant by that, that the fraud must be proved by direct evidence, for a party who commits a fraud always covers up his proceedings in a way that it is difficult, if not impossible, in nearly all cases, to prove the very act or the very intent of the partj^ who has committed the fraud. Therefore, it is always proper to prove fraud by circumstances, and actual fraud is inferred in nearly all cases by the circumstances proved, and the burden of proving fraud is, in most cases, upon the party who avers it. Hence it is laid down in Wait on Fraudulent Conveyances, Section 271:

“In general the obligation of proving a fact rests upon the party who substantially asserts the affirmative of the issue. With the possible exception of conveyance to the wife by a husband, the burden of proof in cases where the instrument is valid upon its face, generally rests upon the creditor to show a fraudulent intent or absence of consideration. A creditor may succeed under the statute in New York simply by proving a fraudulent intent. If, however, the vendee, having the burden thus cast upon him, shows that valuable consideration was paid for the transfer of the property, then proof of the vendor’s fraudulent intent is insufficient; there must be evidence of a fraudulent intent on the part of the vendee, or that he had notice of the vendor’s design. Where a strong doubt of the integrity of the transaction is created, the duty of making a full explanation, and the burden of proof to sustain it, rests with the insolvent.”

This, we think, expresses 'the rule as to fraud generally. But' it is claimed that this rule does not apply where the- parties stand in a fiduciary relation, where there is confidence.

Bigelow on Fraud, Vol. 1, at pages 261-2, says;

“When a party complaining of a particular transaction, such as a gift, sale, or contract, has shown to the court the existence of a fiduciary or a confidential relation between himself and the defendant, and that the defendant occupied the position of trust or confidence therein, the law raises a suspicion or, it is said, a presumption of fraud; a suspicion or presumption, arising as a matter of law, that the transaction brought 'to the notice of the court was effected through fraud, or what comes to much the same thing, undue influence by the opposite party, by reason of his occupying a position affording him peculiar opportunities for taking advantage of the complaining party. Having special facilities for committing fraud upon the party whose interests have been entrusted to him, the law, looking to the frailty of human nature, requires the party in the superior situation to show that his action has been honest and honorable. ’ ’

Further on, it is said:

“For the protection of the former (weaker) person the.law raises a suspicion or presumption that the transaction between the parties has been effected through undue and illegal means by the latter — that the party in the superior position has used that position to the injury of the party in the inferior situation; and this suspicion or presumption must be overcome if the transaction be impeached, before the superior party in the situation can retain the benefit received.”

There are many cases cited both in the briefs of counsel and in the text-books from which I have quoted, showing that this rule is adhered to strenuously by courts of equity, and it is upon the principle that, in order to bind a party, there must be a full and free consent. Consent is an act of reason accompanied with deliberation; and, in transactions in which one of the parties is not as free and voluntary an agent as the other, or does not apprehend the meaning and effect of what he is doing, it wants the very qualities which are essential to the validity of all transactions. There is no legal consent except that which is given with reflection and with knowledge, without restraint or surprise; and anything that takes away this reflection or judgment will nullify consent, and it is on this principle that courts of equity say that when a person who, from his state of mind, age, weakness or other peculiar circumstance, is incapable of free discretion is induced by another to do any act which may tend to the injury of himself or his representatives, that other shall not be allowed to derive any benefit from his improper conduct. And it is upon this principle that contracts of idiots, lunatics, and other persons non compos mentis, or persons in a fiduciary relation, where one has a great advantage of mind or position over another are deemed invalid in a court of equity; but the mere fact that a person is of unsound mind or is in confinement will not per se call upon a court to interfere, especially where the transaction was for his own benefit and if he knew what he was doing. Upon this same principle, if it appear that a fiduciary or confidential relation exists between the parties to a transaction, or if it be established by evidence that one of the parties possessed a power or influence over the other, or that one was of very weak mind by reason of sickness or mental decline, the burden of proof lies upon the party filling the position of active confidence or possessing the power or influence, as the case may be, to establish, beyond all reasonable doubt the perfect fairness and honesty of the transaction.

Then, when it was made to appear in this case that Mrs. Winnifred Jones was, at the time she made this deed, of old age, sick and in a mental decline and her mind had become very weak it would, from such facts, devolve upon the son to show by clear and convincing eveidence that the transaction was fair and voluntary on her part and that no undue influence was used to bring about the conveyance. When there is added to this the fact that the contract was one in which he got by far the best of the bargain and which amounted to a conveyance to him for no consideration that he intended at the time to render, as shown by his subsequent conduct, the contract is void in the sense that it may be avoided by reason of such facts, and the burden of showing that it was fair and without any restraint is upon him.

In other ivords, great mental weakness, and an unfair consideration, where the parties stand in a fiduciary relation, will avoid the contract, and, under such circumstances, the law raises the presumption that the transaction was brought about by the undue influence of the vendee.

The defendants, Charles P. Jones and his 'wife, have failed to sustain themselves under this burden of proof. The whole transaction was brought about ivithout any one being present who ivas specially interested on behalf of Mrs. Winnifred Jones and who ivas not also interested in behalf of the defendants.

Under the circumstances that existed in this case it has been held that in order to make a conveyance of this character good, it is necessary that the aged parent should have' counsel and advice from-one who is in no wise interested on behalf of the grantee. That ivas not done in this case. A greát deal of formality was gone through with in obtaining the deed, and much was done that it is difficult for the court to understand why it was done, except on the ground that there was an apprehension on behalf of those who w^ere obtaining, the deed that possibly it might not be good because of the condition of the grantor’s mind; and the grantees absenting themselves from the room while all this formality was going on, can be explained in this case, in no other way, or at least it is not explained; and the only rational inference to be drawn from it is that they were under apprehension that her capacity might be questioned and it would be well that they should not be present while the deed was being made.

There is an' entire failure on the part of the grantee and his wife to show that there ivas no fraud, no undue influence, and that they were in.no way to blame for the obtaining of the deed.

It is claimed on behalf of the two daughters, who are the real plaintiffs in this ease, that the seven hundred dollars borrowed at the bank should be taken from the interest of Charles P. Jones in this property as heir; and that claim is made upon the ground that he used the money for his own benefit. The evidence is not clear as to who used this money. There is some evidence that, in our minds, tends to show that some portion of it was used to pay debts which Winnifred Jones owed — how and when those debts were contracted does not appear — and if this conveyance is set aside, it is not unfair to the defendants that they should be rewarded in some way for the care they gave to their mother while she lived with them.

On the other side, it is claimed that they really absorbed the seven hundred dollars she had left after paying the funeral expenses of her husband, and absorbed all the rents from the time of the death of her husband until the borrowing of the seven hundred dollars and have absorbed the rents since that time until a receiver was appointed in this case; but just how that money was used by the defendants is not made clear by the testimony in the case.

AVe think it clearly appears that very much, or all of this money, was used by them and that they have been amply rewarded in the use of that money for any service they gave to their mother, both before and after making the deed.

It is our judgment in this case that the deed of this property in which Winnifred Jones conveyed to Charles P. Jones, be set aside as void, and that the wife of Charles P. Jones having given no consideration for the deed to her from her husband, that deed also be set aside. The plaintiffs are to pay one-half, the costs of this action, and the defendants, Charles P. Jones and his wife, are to pay one-half of the costs. The bank’s mortgage remains a lien on the entire property.


source: Caselaw Access Project

license: Public Domain

text:
    VALIDITY OF LAW REGULATING LOCATION OF LIVERY STABLES.
    Circuit Court of Cuyahoga County.
    Emma B. Malone v. Mary M. Porter et al.
    Decided, June 21, 1902.

      Constitutional Law — Boarding Stables — Law Requiring Consent of Nearby Residents to the Building of a Boarding Stable, Valid.

    Section 2672-105, Revised Statutes, providing that before one can secure a license to build or operate a livery or boarding stable in a residence neighborhood in certain cities he must secure the written consent of the property owners and lessees within a distance of 300 feet from the proposed building, is not a delegation of legislative power and does not discriminate in favor of a certain class, but is a valid exercise of the police power and is constitutional.

      Noble, Finney & Willard, for plaintiff.

      Blandin, Rice .<£ Ginn, contra.
    Caldwell, J.; Hale, J., and Marvin, J., concur.
   This ease was appealed from the common pleas court, and involves the establishing of a boarding-stable and the right to build one on the lot of the defendant in the action. The action is brought by the plaintiff to enjoin the building of the same. It involves Section 2672, sub-divisions 104 and 105.

Sub-division 104 provides that keeping, maintaining, or conducting any livery, sale or boarding-stable without a license therefor, to be obtained as set forth in the statute, is prohibited in a city of the second grade of the first class.

Sub-division 105 provides as to'the building and construction and keeping of the same undér the rules and ordinances of the city in reference to the business, and this provision is found in Section 105: “provided, however, that if such applicant desires to carry on such business in a part of such city which is wholly or principally devoted to residences and buildings of the dwelling-house class occupied as homes, and in a building or buildings situated upon premises not at the time of such application used in such business, it shall be unlawful to grant such certificate unless such applicant shall secure the written consent thereto of any and all owners and lessees of residence or dwelling-houses within a distance of three hundred feet from the premises upon which said business is to be carried on, and shall satisfy the board that such written consent has been secured. ’ ’

The defendants seek to establish a boarding-stable on East Prospect street in the city of Cleveland, which street is principally and almost entirely devoted to residences and buildings of the dwelling-house class and occupied as homes, and is one of the principal residence streets of the city of Cleveland; the houses being of an expensive and ornamental character, and the street being kept up in a very cleanly and neat manner by its residents.

The business is one that the defendants seek to establish and they had commenced the building of the barn intended for the purpose of a boarding-stable, when this action was brought to enjoin the building of the same and of carrying on the business 1,herein of a boarding-stable. The defendants did not secure the written consent of the owners and lessees of residences or dwelling-houses within a distance of three hundred feet from the premises upon which said business was to be carried on, nor did they obtain a license from the city for the purpose of this building or business.

It is admitted in this case that if these sections of the law are constitutional, the defendants, not having complied with the same, have no right to establish their business on the street, but if the act is unconstitutional, then they claim that they have the right to establish the same without obtaining consents and without the license provided for in the law.

This raises the question of the constitutionality of the law, and it is claimed that the law is unconstitutional:

1. Because it is a local law.

2. Because the provision of obtaining consents within the prescribed distance from the barn sought to be established is an unwarranted provision of the law, and unconstitutional because it delegates to the citizens residing within the prescribed distance the right to determine what the law shall be.

3. Because the provision is unreasonable and discriminates between persons desiring to establish a business on the street and those having a business already there.

First. As to the law being unconstitutional because it is a local law on a general subject. The law is one applicable in cities of the second grade of the first class and, as such, applied at the time of its passage to but one city in the state, but which might, at any time thereafter, apply to more than one, or to many. This class of legislation has frequently been upheld by the Supreme Court and, as we understand the decisions, that court has never held a law of this character to be a local law— that it applies to all of a class, which class may include more than one city. This legislation we understand is constitutional. The Supreme Court adheres to its ruling that cities may be classified and, as long as the classification is extended to more than one, with a possibility of many that shall belong to that class, that classification is warranted by the Constitution. There are many decisions upon this question in the Supreme Court Reports, which were reviewed carefully upon the hearing of this ease and which we have examined, and we believe they warrant us in holding that this law is a general law.

Second. Is the law unconstitutional for the reason that it delegates legislative powers to the citizens whose consent is to be obtained? In our judgment there is no legislative power delegated. The power delegated pertains entirely to the execution of the law; to 'the carrying out of its provisions; and, when the stable is established under the law, it is done by. virtue of the law and not by reason of the consents of the lot owners.

This question has been the subject of much litigation in the courts and it would be impossible to undertake to give all the authorities bearing upon this question, but we believe this general rule to be established.- that if the power is delegated to say what the law shall be, it is unconstitational; but if the power delegated pertains only to the execution of the law, to the mode and manner of carrying it out, then it is constitutional.

The matter of determining when a law shall go into effect in a certain community, or as to a certain property, has been many times before the courts. 43 Ga., 421; 70 Cal., 35; 41 Miss., 737; 51 Miss., 735; 42 Ind., 547; 19 Fla., 563; 64 Ala., 300.

Some of these cases pertain to the regulation of the sale of intoxicating liquors; they prescribe that before a person shall engage in that business he shall have the consent, in some cases, of the adjoining property owners, if the community is given to residence purposes; in other cases, of the persons who live in the ward or township in which the business is sought to be established, and, in other cases, of a certain number of those who live in the vicinity, describing the territory covered. The same rule applies as was applied in 19 Fla., 563; 69 Ala., 300; 118 Ind., 41.

In this latter case the law provided that the depot-master was to say where hacks should stand around the depot. It was held constitutional. A case of the same nature is found in 27 .Minn., 363. The same ruling has been applied to auctions (28 Iowa, 96), and to camp-meetings (120 Ill., 567).

In 116 Mo., 248, it was sought to make the same ruling apply to a livery stable, and the court held the law to be unreasonable, and that it gave a right to exclude the livery stable from every part of the city and hence from the city entirely. AVhile the court recognized the right to regulate stables, yet a law that would exclude them entirely from the city upon the will of the people, would be unreasonable, in that such stables were necessary for persons residing in the city and for persons residing out of the city and coming in.

The matter was before the Supreme Court of Illinois in 162 Ill., 494. That law was much like the one under consideration in this ease and the mere fact that it arose under an ordinance instead of under a statute, would make no difference. The municipality gets its authority to legislate from the Legislature, and any law made by the Legislature that is unconstitutional, would be unconstitutional if made by a municipal corporation. This law was upheld as not delegating legislative power and as not being unreasonable.

In commenting upon the 116 Mo., supra, the court draws a clear distinction between the two ordinances, in that the Missouri ordinance, or the St. Louis ordinance, was such as to exclude stables from the city entirely, at the will of the people, while, in the Chicago case, it was only to exclude them from, certain neighborhoods given over to residences. This feature of the law is not unconstitutional, nor is it unreasonable. It seems to us that it would occur to any one that the excluding of livery and boarding-stables from a neighborhood given over to fine residences is not an unreasonable thing to do. But this law does not seek to exclude them entirely from such neighborhoods. It gives the party a right to establish his business on any street in the city, but, before he can do so, he must have the consents of certain of the property owners around his property, and that provision is certainly not unreasonable.

It is claimed, in the next place, that the law is unconstitutional because it extends to one class of citizens rights which it excludes others from enjoying unless the consents named in the statute can be obtained.

The law is a police regulation, intended to save the people from the vicinity of such a stable the annoyance that invariably arises therefrom, and, as such a regulation, it is much like the regulation in regard to fire limits, which is also a police regulation, pertaining to fires; while the law under consideration is a police regulation pertaining to health and comfort — both of the same nature.

There are many eases to be found in the books, where limits have been established within a city, where no frame building can be erected, without undertaking to disturb the frame buildings within the territory prescribed already erected and made of wood.

Such laws have been held constitutional, and the principle underlying them is, that while the city may prescribe regulations of this nature in regard to health, fire and crime, and other matters of like nature, it may not, in prescribing such regulations, destroy property already existing, unless such property has become a nuisance and can be declared to be such. The party already in business and the one who seeks to go into and establish a business in prohibited territory are persons of a different class; they stand upon different rights and upon different facts, and the distinction is one clearly recognizable by law.

The same principle has been applied to camp-meetings (120 111., 567, and many other cases, that might be cited). Camp-meetings are permitted, by law, to exclude all persons from establishing business during camp-meeting on property not only owned by the camp-meeting, but on property owned by persons who 'seek to establish the business, and yet excepting from the law those persons who have a. regularly established business within the prescribed territory; and the business, within the facts and the difference in the situation of the parties, is so different a thing, sufficient in magnitude to place them in different classes.

Many other examples of the rule under consideration might be cited, but we see no profit in doing so.

It is our conclusion that the law is constitutional, and that the defendants, not having complied with the same, are not entitled to erect their boarding-stable, nor to use their property for such purposes, because they have not complied with the law.

The injunction sought in this case is made perpetual.


text:
    LACHES IN AVOIDING FORFEITURE OF A LEASE.
    Circuit Court oí Cuyahoga County.
    The Army & Navy Hall Company v. F. A. Beckwith et al.
    Decided, March 10, 1902.

      Forfeiture — Tenant May Lose Right to Avoid Forfeiture by Laches.

    Where a tenant has acquiesced in a forfeiture of his lease for a period of three months, during which time portions of the premises have been leased to other lessees and by them sub-leased, it is then too late to ask the aid of a court to avoid the forfeiture.

      Meyer & Mooney, for plaintiff.

      Goulder cfe Molding, White, Johnson McCaslin and Brady & Cashman, contra.
    Hale, J.; Caldwell, J., and Marvin, J., concur.
   Under the issues in this case we are called upon to say whether the forfeiture or attempted forfeiture of a lease shall be set aside and the lessee restored to its rights under the lease.

The lease bears date of April 1, 1892, and was by O. S. Britton and others to the Army & Navy Hall Company for a period of twenty-five years at a rental specified in the lease.

The lease contained-this clause:

“And it is mutually agreed by the parties aforesaid, for themselves, their heirs, executors and administrators, successors, and assigns respectively, that if at any time the rent, taxes or assessments aforesaid, or either of them, or any part thereof, shall be in arrear and unpaid for the period of thirty (30) days after becoming due, or - if any of the covenants and agreements shall not be performed as herein stipulated to be performed by the second party, the first party, their heirs, assigns, executors or administrators, at any time after such delinquency shall have occurred shall have full right without demand of payment or notice, to enter upon the above described premises, and take possession thereof, and bring suit for and collect all rents, taxes and assessments which shall have accrued up to the time of such entry, and from thenceforth this lease shall become void to all intents and purposes whatever, at the election of the first party, and all improvements made on said premises shall be forfeited.”

The taxes falling due on June 20, 1899, and the rent becoming due July, 1899, were unpaid, and on the 28th day of July, 1899, prior to the expiration of the thirty days in which the lessors might enter upon the premises, this notice was served upon the lessees:

“You are hereby notified that unless you pay to us on or before August 8th, 1899, the amount of rent due or which shall become due before that date, together with all taxes and assessments upon the building occupied by you under the lease of April 1st, 1892, we will upon that day take possession of said building under the terms of said lease.”

On the 28th of August, 1899, the lessees having taken no notice of the notification already referred to, this notice was served upon them:

“You having failed to pay the rental for the months of June and July, 1899, and the last half of 1898 taxes in accordance with the terms of our lease to you, dated April, 1892, recorded May 20, 1892, Vol. 16, p. 20, Cuyahoga county records, and said defaults having continued for more than thirty days, you are hereby notified that on account of said breaches, we, under and by virtue of the authority given by said lease, elect to and do hereby declare said lease forfeited and by virtue of the same authority, we take possession of said premises and all improvements thereon.”

This notice was served upon Mr. Hessler, who was then president of the Army & Navy Hall Company.

It was contended on the part of the lessees, that Mr. Hessler offered to pay the rent by cheek. That is denied by Mr. Britton, who served the notice. Looking at the testimony of the two, we are satisfied that something was said about a check by Hessler to Britton, but there was no offer to give to Britton his cheek; in terms no tender made, and the parties separated under such conditions as, we think, the tender of the check should have no particular significance in the determination of this' action.

On the 28th day of August Britton took possession of the leased premises and has ever since been in possession thereof.

Some twenty days or more after the attempted forfeiture of this lease by Britton, the directors of the Army & Navy Hall Company held a meeting in which the subject-matter of the forfeiture of this lease came up for consideration. The chairman stated that all efforts to sub-let or sub-lease the hall under the company’s lease were futile, and that the owner had taken possession of the property by reason of the failure of the company to pay the rent of the months of July and August and the half-year’s tax due in June. It was moved by Conrad and seconded by Barnes that G. D. Barnes be authorized to sell the chairs in the lower hall and such other property as he can sell for the benefit of the Union Loan & Building Company, which held a mortgage thereon. The formal statement was prepared by the secretary and by vote of the directors sent to the post. •

The Army & Navy Hall Company was a corporation. The Army & Navy Post was a different organization.

The Army & Navy Hall Company held the lease and it had sub-let to the Army & Navy Post certain privileges under that lease, and this is the statement that was authorized to be sent to the Army & Navy Post:

“It is with regret that the directors of the Army & Navy Hall Company notify you that the lease of the Army & Navy Hall Company has become forfeited to the owners of the property and they have taken possession thereof owing to the unfortunate fact. It was found to be impossible to dispose of it or sub-let it without the owners’ consent, which could not be procured. The owners consent that the post can retain possession of the upper floor until January 1st and thereafter, if desired, upon such terms as may be made between the post and Mr. C. F. Britton, who was one of the owners and the managing owner.”

Now it will not be disputed that, if after this attempted forfeiture of the lease by the lessors, the Army & Navy Hall Company had given express consent to the forfeiture and turned over voluntarily the possession of these premises to the lessors, the court would not interpose to set aside the forfeiture thus consented to.

On the 14th day of September, 1899, twenty days after this forfeiture, the owners of the building leased a portion of 'the premises to one Wood for a term of five years from October 1st, 1899,' to September 30th, 1904, at a stipulated rental. This lease on the 4th day of October, 1899, was assigned to the Calumet Company by Wood and that company immediately took possession of that portion of the premises assigned to it, and expended in alterations some five thousand dollars in fitting up the premises for the business it proposed to prosecute thereon.

On the 14th day of.December, 1899, the owners of the building, Britton and others, leased to the Retail Grocers’ Association a portion of the premises that was covered by this lease, for a period of one year, and, on the 5th day of January, 1900, the ■Army & Navy Hall Company, the original lessees, took a lease for a portion of the premises from the Retail Grocers’ Association.

The Army & Navy Hall Company took no steps to prevent any of these contracts on the part of the owners of the building or in any way to interfere with the lessors or the owners of that property until some time in December. Then the matter was agitated in meetings of the Army & Navy Hall Company, and, on the 2d day of January, 1900, that company undertook to make an account of the rents received by the owners of the building after the attempted forfeiture of the lease and made a tender of the remainder claimed to be due the lessors.

On the 5th day of January, more than three months after the attempted forfeiture, this action was commenced. At that time the owners of the building had made new leases to other lessees; these lessees had sub-let portions of the property rented to them — all this had been done without the slightest attempt to interfere on the part of the Army & Navy Hall Company.

These transactions, in legal effect at least, are equivalent to an express consent on the part of the Army & Navy Hall Company to the forfeiture of that lease. While courts are supposed to be adverse to forfeitures and will seize upon the slightest circumstance to avoid forfeiture, we know of no case in which courts have set aside a forfeiture in favor of a party who has expressly consented to the same.

We feel compelled to dismiss this petition.

The decree of the court will be for the defendants.


text:
    RIGHTS OF THE VENDEE UNDER A RESCINDED CONTRACT.
    Circuit Court of Cuyahoga County.
    Catherine Galagher v. Samuel E. Dettelbach.
    Decided, 1902.

      Quasi Contract — Vendee May Recover Purchase Money Paid Under a Voidable Contract.

    Where a vendor elects to rescind a contract which is voidable under the statute of frauds, the vendee may maintain an action to recover from the vendor any purchase money which he may have paid under the contract without alleging that he himself is ready and willing to perform.

      James F. Walslv, for plaintiff in error.

      Carpenter & Yoxmg, contra.
    Hale, J.; Caldwell, J., and Marvin, J., concur.
   The court of common pleas sustained a general demurrer to the petition and gave judgment for the defendant.

It is alleged in the petition that the defendant, on the 23d day of October, 1897, entered into a verbal contract with the plaintiff by the terms of which the defendant sold and agreed to convey to the plaintiff for the consideration of $2,475 certain described real estate, and that on said day the plaintiff paid to the defendant, on the agreed purchase price, the sum of $300. That the defendant elected to rescind said verbal contract, and, on the 6th day of April, 1898, conveyed said real estate to another and refuses to repay to the plaintiff said sum of $300.

This petition, we hold, states a cause of action.

One who has entered into a verbal contract for the purchase of real estate, voidable under the statute of frauds, and paid a portion of the purchase price, may not himself elect to rescind the contract, refuse to perform the agreement on his part, and by action recover the amount paid by him, the vendor making no default.

If, however, the vendor elects to rescind the contract or refuses performance on his part, and puts it beyond his power to convey the real estate in accordance with the terms of the verbal agreement, the purchaser may recover the money paid.

It being alleged that the defendant elected to rescind the contract, and conveyed the premises to another, it was unnecessary, to constitute a good cause of action, that the petition should contain the further allegation that the plaintiff had performed, or offered to perform, the contract on his part.

If the defendant has received from the plaintiff money upon a contract voidable at his election and has elected to avoid the contract, he should refund the money so received.

The judgment of the court of common pleas is reversed, and the cause remanded for further proceedings.


text:
    MISTAKE IN A MECHANIC’S LIEN AS TO THE OWNERSHIP OF THE PROPERTY.
    Circuit Court of Cuyahoga County,
    O. T. Lapham v. Fenton E. Spink et al.
    Decided, February 5, 1901.

      Agency — Mechanic’s Lien — Agency May he Implied — Mechanic’s Lien Valid Though Affidavit Does Not State True Owner of Property.

    1. An agency may be implied from the relationship and dealings of the parties, and where a son has permitted his father to have charge of certain property, collect rents, make repairs and alterations, without protest on his part, an agency to purchase materials for other repairs and alterations will be presumed.
    2. An affidavit for a mechanic’s lien which states that the ownership of the property is in someone other than the real owner, does not thereby make the lien invalid when the property is properly described.

      Frank Higley, for plaintiff.

      E. J. Thobaben and A. W. Myers, contra.
    Caldwell, J.; Marvin, J., and Hale, J., concur.
   This case is in this court on appeal. Lapham brought an action to foreclose a mechanic’s lien on certain property of-which the defendant is owner.

The evidence as presented, raises two questions for consideration, and these are questions of law as well as of fact:

First. Did the plaintiff furnish the materials for the building upon which he seeks to enforce his lien, under a contract with the owner ?

Second. Did the plaintiff.so perfect his lien that he is now entitled to a judgment in this ease?

In the lifetime of Mrs. Spink, who was the wife of R. E. Spink and the mother of Fenton E. Spink, this property was in her name and by the records she was shown to be the owner of the same; she died and Fenton E. Spink became the owner of the property subject only to the dower of his father, R. E. Spink.

R. E. Spink took upon hismself, with his son’s consent, the entire management o£ the -property and all improvements that were made upon the same from time to time, and collected and used the rents for his own purposes. While thus managing the property, he at one time made improvements upon the same by way of building a porch to the house, and contracted for the lumber and labor necessary for the erection of the same, with his son’s knowledge and acquiescence. Later and about the time that Lapham furnished material, R. E. Spink again made improvements upon the property. Those improvements consisted in laying walks from the street to the house, and steps to approach the house, and in making certain changes inside of the house.

. The son knew that the father was about to make these improvements, and made no objection and in a very mild manner advised his father that he did not think that the changes inside of the house were necessary.

A mechanic’s lien was taken by the party who did the stone work, which lien the defendant has since paid.

Lapham, for the lumber and material that he furnished for the inside woi’k, took a lien for such material, and that lien he here seeks to foreclose.

Under the statute of our state it is necessary that the party who is about to perform work or furnish material, for an improvement of property of this nature, must have a contract with the owner; and the contention in this case is, that there was no contract with the owner; and that is based upon two propositions: first, that R. E. Spink was not the agent of the owner; second, that the defendant never assented to his making improvements upon the property.

The contract required by the statute is such a contract as may arise out of the facts, and need not be shown at all times by an express agreement.

That R. E. Spink contracted for this lumber for the improvement of this property, there can be no question, and, as we understand, no question is made upon that point. But it is contended that R. E. Spink ivas not the agent of the defendant.'

To prove the fact of agency it often becomes necessary to show how the principal and one who is alleged to be his agent have acted toward each other.

In this case R. E. Spink had entire control of this property. He rented it; he collected the rents; he used them as he saw fit, with the consent of his son, and entered into such contracts as to the property, both as to relating and repairs, as to him seemed proper, and the son acquiesced at all times in such dealings on the part of his father.

We have no doubt but that under the circumstances the father was the agent of the defendant; although they might not have understood that relation to exist between them, yet in law that was the relation they sustained to each other.

It is said that R. E. Spink had no authority to bind his son in making the improvements that he inade upon the property and that they were made without his knowledge and consent and, therefore, outside of any authority the agent had.

This contract of agency may be express or implied, and the question of the agent’s authority may also be express or implied. A very common way of showing that one who is said to be the agent of another had authority to do the act in question, is to show that prior acts of a similar nature had been done by the agent and approved by the principal.

In this case Ave find that R. E. Spink had bnilt the porch without any consultation with his son, and had bought the lumber, had overseen the Avork and had paid for the same out of the moneys belonging to the son. To all of this the son made no objection, but acquiesced in the same. The father contracted for the stone work at the same time that the present lien Avas created. The son knew that the father was making the contract; he knew that the stone was being* furnished; he as-' sented to the same being done and thereafter paid the lien that was taken upon the property for that AA^ork.

At the same time that the stone work was being done, the plaintiff was furnishing lumber for the improvement of the house; the son kneAv that the father contemplated doing the work; he did nothing more than to advise against it. After the father’s death he Avent on and completed the work, and for such purpose obtained other material from the plaintiff.

Under all this testimony, taking into consideration that it was a dealing betAA'een the father and the son, Ave think that the son acquiesced in the improvement that AAas being made and at the time of his father’s death made no objections to Lapham by reason of the fact that he had furnished material for such work, but, on the contrary, ordered more material from Lapham to complete the building. We think that the plaintiff has made out his case in this regard and that he has established the fact that he furnished the material under a cbntract with the owner. Of course, what one does by an agent, he does himself.

The second question is: Was this lien so perfected as to now bind the property and enable the plaintiff to foreclose it against the defendant?

R. E. Spink in his lifetime bought the lumber that went into the property. Fenton E. Spink had inherited the property from his mother some years before these improvements were made.

When Lapham came to file his lien, he looked at the records and found that that property stood in the name of Mrs. Spink, and thereupon he made out his affidavit and lien, naming her as the OAvner of the property.

The statute does not require that in the affidavit that is filed to perfect the lien, the owner shall be named.

The statute of this state, as in many others, seems to regard the perfecting of the lien as a proceeding in rem against the property, and if the property is properly described and the other requisites of the statute are complied with, it is all that is contemplated to be done to perfect the lien.

If this contract was with the defendant, as we have found it was, then he is liable for this lumber, and notwithstanding he was not named as the owner of the property and another was named, because the property was described as required by the statute, we think, as against the defendant, the lien is good.

These statutes are now quite universally regarded by the courts as remedial in their nature, and are liberally construed, and the rule is that if anything is named by the statute as a condition precedent .to the obtaining of a lien, such as furnishing the material under the contract and with the owner, that that must be complied -with; but that, in taking the steps to perfect the lien upon the record, no error will be regarded as defeating the lien, unless it is such as is prejudicial to the owner.

The error here complained of in no way prejudices the owner of the property.

If such a mistake should be made and innocent parties should obtain an interest in the property, or a lien upon the same, without actual knowledge, questions of a different nature would arise, which it 'is not necessary to consider in this action.

We think, under the law and facts of this case, that the plaintiff has shown himself entitled to the relief which he asks and, in fact, the defendant does not seriously object to this, except that he thinks there was not fair dealing with his father on the part of Mr. Laphani; but the court is satisfied that the account is a just one and the plaintiff is entitled to the relief he prays for in his petition, at the cost of the defendant.


author: Crow, J.

text:
    INEFFECTUAL ATTEMPT TO RESERVE IN A DEED THE POWER. OF ALIENATION.
    Court of Appeals for Paulding County.
    Anna B. Smalley v. Daniel W. Smalley et al.
    Decided, January 8, 1916.

      Deed — Placed in Escrow and Delivered After Death of Grantor — Right Reserved by Grantor to Sell and Convey — Language of the Exception Eeld Ineffectual to Impair the Estate Conveyed.

    Where in a deed of conveyance of real estate, language is employed by way of condition or exception, reserving to the grantor the power-of alienation of the estate conveyed, such repugnant language will, on grounds of public policy, be denied effect.

      Hooper & Le-nhart and Waters & Bayliss, for plaintiff.

      F. P. Spriggs, P. W. Stumrn and A. N. Wilcox, contra.
   Crow, J.

In this cause, which is here on appeal from the Court of Common Pleas of Paulding County, Ohio, plaintiff seeks to recover and have aparted to her the undivided sixth of certain real estate situate in said county.

The essential facts are the following: On June 16, 1900, Daniel F. Smalley, a widower,-died intestate, leaving plaintiff, and the other parties to this action, his sole heirs at law and next of kin. On August 11, 1893, said decedent, by a deed in due form, acknowledged and witnessed, conveyed the premises described in plaintiff’s petition to certain of his children not including plaintiff and others, the deed being in the following language, omitting the acknowledgment:

“Know all men by these presents, that I, Daniel F. Smalley, an unmarried man of the county of Paulding, Ohio, the grantor in consideration of one (1) dollar and other considerations to me paid hy Amariah P. Smalley and Daniel W. Smalley, the grantees, the receipt whereof, is hereby acknowledged, do hereby bargain, sell and convey to said grantees and their heirs and assigns forever, the following real estate, viz., situated in the county of Paulding and state of Ohio, and known as the north half of the southeast quarter of section eighteen, township two (2), north of range two (2) east, containing eighty (80) acres of land the same more or less but subject to all legal highways together with the privileges and appurtenances to the same belonging, with the following exceptions, that said grantor reserves full control and use of said premises during his natural life, with full power to sell and convey said premises, the same as if this deed had not been executed, but in case that said grantor becomes deceased, then the title to said land to rest absolutely in said grantees, their heirs and assigns.
"To have and to hold the same to the said grantees, their heirs and assigns forever, grantor hereby covenanting that the title so conveyed is clear, free and unineumbered and that he will warrant and defend the same against all- claims whatsoever, except the conditions above set forth.”

This instrument was, as soon as acknowledged, left by the grantor with the scrivener, P. W. Stumm, to be delivered by him upon the death of the grantor.

No control of the deed was reserved at the time of such placing it in the hands of the scrivener.

After the death of the grantor, pursuant to said unconditional direction by the grantor, the depositary of the instrument, Mr. Stumm, delivered it to the grantees, who caused the' same to be duly recorded.

Two questions arise upon the facts, and in behalf of plaintiff it is claimed that the correct solution of both requires the avoidance of the deed and a decree of partition in her favor.

1. It-is first urged that the placing of the deed in escrow with the scrivener, and his subsequent disposal of it as above recited, do not constitute a valid delivery.

Whatever may be the law in other states, this point has been clearly settled in Ohio, in favor of such delivery, by the decisions of the Supreme Court- in the following cases: 34 O. S., 610, and 37 O. S., 132.

The above decisions, with which we are unanimously in ful] accord, have become a rule of property.

2. Is the instrument effective at all as a conveyance of lands, in view of the presence in the granting clause, of language immediately following the description, to-wit:

“with the following exceptions, that said grantor reserves full control and use of said premises during his natural life, with full power to sell and convey said premises, the same as' if this deed had not been executed, but in case that said grantor becomes deceased, then the title to said land to rest absolutely in 'said grantees, their heirs and assigns.” .

Of course, no claim is made that the reservation of the life estate in favor of the grantor, could not be properly made. '

But it is insisted that the. language of the exception which preserves to the grantor the full power to sell and convey, as well as the exception following the. warranting clause, renders the deed ineffectual, for the reason that an attempt is made to reserve to the grantor an estate (in fee simple) equal in character and duration to that purporting to have been conveyed.

Many of the early rules of interpretation of deeds, .which had to do with the formal parts, such as the granting, habendum, and tenendum, clauses, have by the uniform holdings of the courts of several states, including those in Ohio, yielded to' the • one which now requires construction by reference to all the language, generally characterized as “by the four corners.”

However, at the threshhold of the interpretation of the deed in issue herein, lies the rule requiring a deed to be construed most strongly against the grantor. This is also a rule of property in Ohio. 15 Ohio, 196, 200; 7 Ohio State, 37, 42.

Another applicable canon of interpretation closely allied to if not included in the one' just mentioned, requires that if the instrument be susceptible of two interpretations, one of which will pass the title, and the other will not do' so, the former will-be adopted.

The controlling question in the case at bar is the following; where, by the terms of a conveyance of real estate otherwise free from doubt, the whole of the estate sought to be conveyed is, by an exception, reserved in the granting’ clause to the grantor,does such irreconcilable repugnancy exist as must render the instrument nugatory?

Were the language reserving to the grantor of the deed here in question, full power to sell and convey the premises the same as if the deed had not been executed, absent from the conveyance under consideration, no one would claim that the remainder in fee simple, subject to the reserved life estate, would not pass to the grantees..

But this language can not be disregarded.

Either it must result in complete destruction of the attempted conveyance, or it must be adjudged of no force as against the title which would pass were it not employed.

Manifestly the grantor intended three things by this instrument: first, to convey a fee simple title to the grantees; second, to reserve an estate for. life, to himself; and, third, to engraft on the fee simple title a right in himself, which might take from the grantees every attribute of the title the grantor was investing in them;

By the language itself, the grantor made the reservation essential and entirely repugnant to the very nature of the estate he had conveyed.

With much diligence we have endeavored to find a case in Ohio on this precise question, where a deed was in issue. In 36 Ohio State, 506, the principle is applied in the ease of a will, where-restraint of alienation was attempted. At page 515, the learned judge asserts the rale to be the same by deed as by will, and indeed no reason can be perceived for any discrimination in the application of this rule. The restraint is void as against public policy. And, as stated in the ease last cited, the owner of property can not transfer it absolutely to another, and at the same time keep it himself. -He may restrain or limit its enjoyment by trusts, conditions or covenants, but can not take from a fee simple estate its inherent quality and still transfer it as such estate.

While in the ease just referred to, the restraint sought to be imposed was on the power of the devisee to alienate, the principle will apply as well where by exception in a deed a grantor would undertake to restrain alienation by language reserving to him tbe power to deprive tbe grantee of the title sought to be conveyed.

This subject is admirably covered is the recent and very valuable work, Ruling Case Law, at page 1094 of Volume 8.

We entertain no doubt concerning the correctness of the rule there so clearly stated and abundantly supported by the notes to which it refers, which harmonize with the Ohio case referred to.

We hold, therefore, that the quoted language of the exceptions in the ease before us, is ineffectual, so far as it undertakes to impair the estate in fee simple subject to the reserved life estate.

Kinder, J., and Ansberry, J., concur.


author: Houck, J.

text:
    CLAIM BARRED BY JUDGMENT IN FORMER. ACTION.
    Court of Appeals for Licking County.
    Perry Feazel v. Jacob Feazel.
    Decided, October Term, 1915.

      Res Adjudicate — Oonclusiveness of a former Judgment — Not Only as to What Was Determined — But as to Matters Which Might Have Been Litigated in the Same Action.

    Where testimony as to the claim now in suit was offered and went to the jury in a former trial, in which the present plaintiff was defendant and the present defendant was plaintiff, a reviewing court must assume there was a determination as to that claimed and .the principle oi- res ad judicata applies, notwithstanding the answer in the former suit was a general denial and no affirmative relief was sought and no claim presented with reference to the account on which recovery is sought in the case at bar.

      Kibler ■& Kibler, for plaintiff in error.

      Fitzgibbon, Montgomery & Black, contra.
   Houck, J.

This is a proceeding in error prosecuted from the Common Pleas Court of Licking County, Ohio; the parties stand here in the same position as in the court below. •

The cause was submitted to the common pleas court upon the question made by the pleadings in the case as to whether or not the plaintiff is estopped, and whether the claim in the petition is res adjudicata by reason of the allegations and matter set forth in the answer of the defendant. Said cause being submitted to the common pleas court upon .the following stipulation and agreement between the parties hereto:

“That the question of res adjudicata and of estoppel shall be submitted to the court upon the pleadings in the ease of Jacob Feazel v. Perry Feazel, heretofore tried in the Court of Common Pleas of Delaware County, Ohio, being ease No. 6821, the pleadings in this case and the bill of exceptions in said Delaware county case.”

The common pleas court rendered a judgment in favor of the defendant, and a reversal of this judgment is sought by plaintiff in error.

The plaintiff' brought suit in the common pleas court against the defendant asking for a judgment against him in the sum of $1,061.25, alleged to be due him for board and lodging, etc., furnished by plaintiff to the defendant between August 17, 1910, and July 10, 1912, being the time defendant lived in the home of plaintiff in Delaware county, Ohio.

An answer was filed to the petition pleading, among other things, the defense of estoppel and res adjudicata in this, to-wit: that all of the matters, things and questions involved in said suit had been fully tried, determined and adjudicated between the parties hereto in a suit which was tried in the Common Pleas Court of Delaware County, Ohio, on the 17th dajr of October, 1915, and a final judgment rendered therein.

Two questions are presented in this case:

First. Is the cause of action set forth in the petition in this case in any way connected with the ease tried in Delaware county wherein Jacob Feazel was plaintiff and Perry Feazel was defendant ?

Second. Was the cause of action in plaintiff’s petition in this ease submitted to and passed upon by the jury in the Delaware county case, notwithstanding the charge of the court in said case ?

■ The stipulation and agreement upon which this cause is submitted, among other things, provides that the bill of exceptions in the Delaware county case shall be considered by the court. We have examined the same with some care, with a view of ascertaining the facts that were presented in that case that would be applicable and proper in the determination of the questions involved in this case and especially with reference to the charge of the court.

The bill of exceptions discloses that practically all of' the items set out in the petition in the ease at bar were charges made within the time that the defendant lived in the home of the plaintiff and, speaking from the record, they were submitted to the jury in the trial of the case, and it is not within the province of a reviewing court to say they were not considered by the jury in arriving at its verdict. The record shows that the plaintiff had no contract of any kind with his father for care, support, board, etc., and therefore the charge of the court was proper and right when the court charged the jury: “There is no claim made in the answer for any compensation for board or anything else.” This was a correct and proper instruction to give to the jury in the light of the testimony of the plaintiff himself.

We think it is a well settled principle of law in this state that when a matter has been finally determined in an action between the same parties by a competent and proper tribunal, the judgment is conclusive, not only as to what was determined, but also as to every other question which might properly have been litigated in the case.

True, the answer in the Delaware county case was a general denial and no affirmative relief was sought, and no claim presented therein with reference to the items set out in the petition in the ease at bar, but evidence was offered in the trial of the cáse upon tkése items wbicb went to tbe jury and, so far as a reviewing court is concerned, the jury took these items into consideration in arriving at its verdict.

Our Supreme Court has declared, as a well settled principle of law, that when the facts which constitute the cause of action or defense have been, between the same parties, submitted to the consideration of the court and passed upon by the court, they can not again be the proper subjects for action or defense, unless the finding and judgment of the court is opened up and set aside by proper authority. This principle of law extends still further in quieting litigation. A party can not relitigate matters which he might have interposed, but failed to do in a prior action between the same parties or their privies in reference to the same subject-matter, and if he fails to introduce matters for the consideration of the court that he might have done, he will.be presumed to have waived his right to do so.

' Relying upon the record in the Delaware county case and pleadings'submitted, and applying thereto the well known principles of law applicable to the questions presented in the case at bar, a majority of the court is of the opinion that the judgment óf the common pleas court is right and should be affirmed.

Shields, J., concurs; Powell, J., dissents.


author: Jones (E. H.), P. J.

text:
    ACTION BY REAL ESTATE BROKERS FOR. COMMISSIONS.
    Court of Appeals for Hamilton County.
    Gordon W. Durrell and The Kaufhold Realty Company v. Statia B. Reynolds, Individually and as Executrix and Trustee of the Estate of E. B. Reynolds, Deceased.

    Decided, January 24, 1916.

      Agency — Beal Estate Broker Entitled to His Commission — Where a Purchaser Ready and Willing and Able to Take the Property is Produced — Regardless of the Fact that the Contract of Purchase is in a Farm Which is Unenforceable.

    The fact that a contract of purchase of real estate, procured by a real estate broker, was imperfectly executed, is not ground for refusing the judgment in favor of the broker for the amount of his commission, where the purchaser produced stands ready and is able to take the property at the agreed price, notwithstanding the infirmity in his contract of purchase.

      Bunt, Bennett & Utter, for plaintiffs in error.

      Powell & Smiley, contra.

      Reversing Durrell et al v. Reynolds et al, 16 N.P.(N.S.), 486.

   Jones (E. H.), P. J.

The plaintiffs below, Gordon W. Durrell and the Kaufhold Realty Company, sued the defendants, Statia B. Reynolds, individually, and Statia B. Reynolds, as executrix and trustee of the estate of E. B. Reynolds, seeking to recover the sum of $1,800 for services in finding a purchaser for certain real estate belonging to the E. B. Reynolds estate.

The plaintiffs are real estate agents and on April 18th, 1913, were employed by defendants by written contract as follows:

“Cincinnati, 0., April 18th, 1913.
‘' GL W. Durrell and The Kauphold Realty Co.
‘ ‘ I hereby agree to sell the following property viz: Situate on the south side of Sixth St. between Main and Sycamore Sts., at +he south-west corner of Sixth and Langdon Alley, being forty two (42) feet front on Sixth St., by a depth of one hundred and thirty-nine feet, ten inches, to an alley, with the improvements thereon, for the sum of Sixty Thousand ($60,000) Dollars, payable Cash and authorize you to procure a purchaser for the same and agree to pay you a commission of three per cent, on the amount for which said property may be sold. I guarantee the title good, and will convey by deed of General "Warranty. Except as to taxes and assessments due after June 20, 1913. In consideration of your efforts to find a purchaser, 1 agree that you shall have the exclusive right to sell said property for 30 days; give you written notice withdrawing the same. It is further agreed that you shall be entitled to your commission. if the property is sold during the existence of this contract by you, or the undersigned, or any other person, at any price acceptable to the undersigned.
“(Signed) Statie B. Reynolds, “Executrix of E. B. Reynolds Estate.
“Cincinnati, O.
“......................hereby accept the agency for said property on the terms above stated.”

On the same day the plaintiffs procured a purchaser who indorsed upon the above contract the following:

“Cincinnati, 0., April 18th, 1913.
“We hereby agree to purchase the above described property at the price and upon the terms above stated.
“ (Signed) Estate op L. B. Harrison,
. “C. L. Harrison et al, Trustees."

Mr. C. L. Harrison who signed the agreement to purchase was one of three co-trustees for the L. B. Harrison estate. The evidence shows that he and his co-trustees were at all times ready, able and willing to take the property and in all respects perform their share of the contract.

The seller refused to convey the property to the Harrison estate, and then refused to pay the agent’s commission, making the claim that the contract of sale secured by the agent was unenforceable; in other words, that because it was signed by one of the trustees only it could not be specifically enforced. This claim was made and such defense interposed in the trial below and in argument here, notwithstanding the uneontroverted fact that Mr. C. L. Harrison was ready and able at all times to comply with the terms of the contract individually, and that the evidence plainly shows that he was authorized to sign the contract, or at least he together with his co-trustees were not only able but ready and willing at all times to comply with its terms.

To support her claim defendant in error relies upon Pfanz v. Humburg et al, 82 O. S., 1. The cases are similar in that each is an action by a real estate agent for his commission. In every other respect they differ. Throughout the opinion points of difference are commented upon as if the learned judge had in mind this ease and was differentiating between them. To show how essentially different the facts are we quote in full the syllabus:

“P., a real estate agent, accepted the following proposition:

“ ‘Cincinnati, Ohio, May 2, 1905.
“ ‘John Pfanz, Agent: I hereby authorize you to sell for me the following described real estate, located at 2241 Flora Place, for the sum of three thousand five hundred ($3,500.00) dollars on the following terms: title to be perfect, free and unincumbered, payments to be cash, and I agree to give you sole authority to sell the same for the period of ten days, and agree to pay you for services when the property is sold.
“ ‘Magdalena Humburg,
“ ‘William H|umburg.’
“P. procured one who said he was willing to take the property at said price-, and he paid the agent $9.75, for which the agent gave a receipt, and turned the payment over to the vendors ; but no written- contract of purchase was entered into, nor was possession taken by the alleged purchaser, who afterwards refused to take the premises or complete the purchase by entering into an enforceable contract.
“Held: That the condition in said contract of employment, ‘to pay for services when the property is sold,’ has not been complied with by the agent and he is not entitled to recover commission.”

The case at bar is one in which the plaintiffs seek to recover for procuring a purchaser, and that is what they were employed for. But in the ease cited, Price, J., in the second sentence of the opinion says:

‘ ‘ The petition shows that the right to compensation depended upon a completed sale. ’ ’

Again, on page 11:

“This agency contract was not to merely procure an able, willing and ready purchaser, but the owners agree to pay for services when the property is sold.”

And, to show further the ground upon which that case was determined, see page 13:

“* * * the owners agree to pay the agent for services when the property is sold. It is not averred in the petition, nor is it established by any evidence introduced by the agent, that a sale was made. ’ ’

Also, see page 12:

“The plaintiff in error, through his counsel, makes the proposition, that ‘ where the real estate agent finds a purchaser who is ready, willing and able to take the property at the stipulated price,'no written contract of purchase signed by the prospective purchaser is necessary to enable the agent to recover his commission. ’
“As a general rule, we may assent to it, but it can not be used to determine every case, especially in a case where the contract of agency is specific and clear as to the condition upon.which commission can be recovered. Nor do we intend to hold that as a general rule it is a part of the agent’s duty to enter into a written contract with the purchaser for the sale of the prop ertv,”

These are only a few sentences from the opinion, but. they are sufficient to show that.the case from which they are taken differs so widely from this case in every material point that it can not be relied upon here, unless it be to support the agent’s case, as we think the opinion does.

There seems to be no ease reported in Ohio where the precise question here presented was determined. That is probably due to the fact that the issue here involved is simple, and one in the solution of which the mind at once turns to and dwells upon the principles of justice and fair dealing which lie at the foundation of our system of jurisprudence and which have served as landmarks in its growth and development.

Mrs. Reynolds employed the agent to find a purchaser for her property. The agent found the purchaser, and it was through no fault of the purchaser or agent that the sale was not consummated. Mrs. Reynolds failed to give title and to make a .deed. She now says she is not liable for the commission because the contract which the agent procured was unenforceable. Unless Ihe purchaser refused to take the property or she was otherwise prejudiced by the alleged defect in the contract, how can Mrs. Reynolds take advantage of its infirmity ? "What had that to do with the failure to consummate the sale? The record shows it had nothing to do with it, but on the contrary that it was through the refusal of the owner to comply with her contract that the sale failed. A person can not be permitted to take advantage of his own wrong, and the authorities relied upon by defendant in error do not uphold her contention.

The main case cited and one that seems to be a leading case is that of Wilson v. Mason, 158 Ill., 304. This was a suit by a real estate broker for his commission for finding a purchaser or effecting a sale. It differs materially from the case at bar. The purchaser, alleged to have been procured, refused to take the property. The validity of the contract, as a matter of course, became an important subject of inquiry. The purchaser procured refused to take the property and the only way he could be compelled to do so was by a suit for specific performance of the contract; hence; the validity of the contract became an element, and a controlling one, in determining the right of the agent to a commission. If the contract, was unenforceable the agent had rendered no service of any value to his employer and should not recove)'. Such were the facts, and so the court decided in that case. But Justice Magruder, who delivered the opinion, began the discussion on page 309 with some general observations with which the claim of-the broker in the instant case are in accord. He says:

“The duty of a broker who is employed to.sell real.estate, is to find and produce to the vendor a purchaser, who . is ready, willing and able to complete the purchase as proposed. This he- must do before he is entitled to any commissions. If the vendor rejects the purchaser so produced, the broker is bound to show that such purchaser was willing, ready and able to perform the contract according to the proposed terms. If the principal accepts the purchaser thus presented, either upon the terms previously proposed or upon modified terms then agreed upon, and a valid contract is entered into between them, the commission is earned. In such case, the broker has earned his commission although the sale is never actually completed, if the failure of the purchaser to -complete the sale results from the inability of the vendor to make a good title, and without fault on the part of the broker. ’ ’

In Ohio the cases are few touching even remotely upon the question here presented. It is interesting to note that practically the precise question was decided by the Superior Court of Cincinnati in Heintz v. Boehmer, 4 N. P., 226.

While it may be said that this case is not authority and not to be necessarily followed here, it has not been reversed and has remained the law of this state. The syllabus is as follows:

“In a suit for recovery of a commission for the sale of real (.state, the failure of the owner to incorporate into the contract with the intending purchaser, found by the agent, provisions which make it binding, does not militate against the agent’s right to recover.”

And in the opinion, in commenting on an instruction given the court say: ' - ■

“In any view of the case, this instruction was misleading inasmuch as it was intended to make the right of plaintiffs to recover depended absolutely upon the right of defendant to enforce specific performance against Muhlhauser. But the instruction is- clearly erroneous when we consider that plaintiffs were not employed to effect a binding contract for the purchase of the property, and that the plaintiffs did not in fact act as the agents to defendant’s intestate in executing .the contract, but that the contract was signed by Maria Agnes Boehmer herself. Her failure to effect a binding contract, can not militate against the rights of plaintiffs, since their duty was performed and their commission earned when they found a purchaser ready and willing to buy, and brought the parties together. The duty of effecting a binding contract then devolved on, and, in fact, was assumed by Maria Agnes Boehmer herself. It was for her and not the plaintiffs, to incorporate in the contract such provisions as would make it .binding notwithstanding the existence of the mortgage.
“The court in its general charge to the jury proceeded upon the assumption that the plaintiffs were bound, and, in fact, assumed to execute the contract of sale, and that they could not recover unless a binding contract was made. This was error.”

There are many cases in other states bearing upon and upholding the right of the broker to recover in this case. First, we cite Buckingham v. Harris, 10 Colo., 455, quoting from the syllabus the following:

“A real estate broker is entitled to his commission when he has procured a party ready to purchase on the owner’s terms, though he has not made a binding contract for the sale of the real estate with such person.”

In Mooney v. Elder, 56 N. Y., 235, the lengthy syllabus is instructive and pertinent here, but we refrain from quoting from it. We, however, take from pages 241 and 242 of the opinion this apt language:

“The plaintiff was entitled to his commission upon the production of a purchaser ready and willing to purchase the property, although through the default of the defendant a sale was never effected. There was nothing showing but that the contract might have at once been consummated, had the plaintiff been ready to give a deed and put the purchaser in possession. The defendant having declared to the plaintiff that he had sold the property, and when called on to pay the commission based his refusal to pay, not upon the ground that a valid contract for the sale had not and could not be made, but upon the ground that he had withdrawn the property from market before the sale was made, can not now shield, himself from liability on the former ground. Besides, the evidence shows, prima facie, that the purchaser was ready and willing to purchase when the verbal contract was made, and there is nothing appearing subsequently in conflict therewith. The court would have been warranted in holding that the commissions then became due, although the conveyance was not made until some time aftérward.”

We will refer to but one other case, viz., Holden v. Starks, 159 Mass., 503, wherein the syllabus is in part as follows:

"If A, acting as the authorized agent of B, makes a contract of sale of B’s land to C, who pays to A a part of the purchase money, and who for a long time afterwards is able, ready and willing to take the property and. pay for it the price agreed, and is prevented from doing so by B’s refusal to carry out the contract, A is entitled to compensation from B for making the sale, although C could not have been compelled to carry out his contract, if he had chosen to set up the statute of frauds.”

This case was tried to a jury in the common pleas court, and counsel for both sides asked for an instructed verdict. The court thereupon withdrew the case from the consideration of the jury and treated the issue as one at law. Thereupon judgment was rendered in favor of defendants. This was error of law, as we have tried to show.

The judgment is reversed, and there being nothing left in the present state of the case but the question of law discussed above, this court will render the judgment that should have been rendered by the court below.

Jones ( Oliver B.), J., and Gorman, J., concur.


text:
    STREAM POLLUTED BY PUMPINGS FROM A COAL MINE.
    Court of Appeals for Perry County.
    The Standard Hocking Coal Company v. Mary A. Koontz.
    Decided, November 19, 1915.

      Measure of Damages — In Action for Pollution of Stream Running Through a Farm — Actual Damages Only Oan he Recovered.

    Where water pumped from a coal mine and discharged into a running stream is so impregnated with sulphuric acid as to pollute the stream and a neighboring well to such an extent that live stock will no longer drink therefrom and the water from the well is rendered unfit for domestic purposes, the damage sustained by thé riparian' owner is measured by the permanent injury to his land as shown by its diminished rental value or the cost of installing another sufficient water supply.

      T. M. Potter and George A. Fairbanks, for plaintiff in error.

      G. A. Donahue and T. B. Williams, contra.
   Houck, J.

This is a proceeding in error prosecuted from the common pleas court of this county, ashing that the court below be reversed in a judgment rendered in favor of the defendant in error, the plaintiff below, against the plaintiff in error, who was the defendant below. The suit was for alleged damages to the farm of the plaintiff below.

The petition in substance avers that the plaintiff is the owner of a farm of one hundred and fifty-eight acres, located in Perry county, Ohio; that running through said premises is a natural stream of water and that prior to the grievances complained of, as hereinafter set forth, this stream had been used by her for the purpose of watering stock and that it was the only available stream for that purpose; that on said premises were dwelling-houses and a barn; that there was a valuable well of water which was used for domestic purposes; that the defendant owned and operated a coal mine north of said plaintiff’s premises and nearby said stream of water; that defendant made an opening into said mine through which water was pumped therefrom and found its way into said stream above referred to, and that said water so pumped into said stream was highly inpregnated with sulphuric acid, and that it polluted the water in said stream'flowing through the land of plaintiff and it found its way into said well on the premises of plaintiff and rendered the water therein useless for domestic or any other purposes, and by reason thereof said farm had become less valuable and her rents and income therefrom had decreased; that she expended large sums of money in an effort to secure suitable water and by reason of the same has been damaged in the sum of $2,000, and for which sum she prays judgment.

The defendant filed an answer to the petition which was in the nature of a general denial. Upon the issue joined the cause was submitted to a jury and a verdict rendered for the sum of $280 in favor of the plaintiff. A motion for a new trial was filed, heard and overruled, and a judgment rendered on the verdict. The plaintiff in error seeks a reversal of this judgment and in its petition in error sets forth a number of grounds of alleged error, but its counsel in oral argument urge but two of them, namely: first, that the court erred in not giving to the jury requests Nos. 2 and 3, which were in writing, and Avere requested to be given by defendant below before argument; second, that the court erred in its general charge to the jury.

Taking up the first ground of alleged error, to-wit, that the court erred in its refusal to give,requests Nos. 2 and 3 before argument, will say that we have examined these requests and while we are of the opinion that as abstract propositions of law they are sound and should be given in such a case, where the facts involved in the case warrant the application of such principles of law as are contained in said requests Nos. 2 and 3, but on an examination of the record and the evidence disclosed therein, we are of the opinion that the facts in the case at bar do not warrant the application of the principles of law as set forth in said special requests Nos. 2 and 3, and that the court below did not err in refusing to give the special requests hereinbefore referred to.

Coming now to the second ground of alleged error, that the court erred in its general charge to the jury, will say that counsel for plaintiff in error complains and contends the court’s charge to the jury with reference to the measure of damages was not the law applicable to the case at bar. That part of the charge to which special objection is made is as follows-.

“Now, the claim here is that the stream was polluted; that the stream in a state of nature was uncontaminated, but by the discharge of sulphur water from this particular mine of defendant the stream was contaminated, and as it passed the place where it passed over her land it was rendered useless for the purpose of watering the herds and cattle she may have had and the well was totally destroyed for domestic purposes.
“That allegation the defendant denies and the burden of proof then is on the plaintiff. If you find that the well was polluted, that the well was in fact destroyed, and if you go further and find that it was done and contributed to either in whole or in part on the part of the defendant, you will go further and inquire what, if any, damage has been sustained upon the part of the plaintiff.
“Now, the plaintiff can only recover, if she recover at all, her actual damages, and she can only recover upon the claims specifically set forth and complained of in this petition. Now, she claims that the rental values of her premises were diminished and that the value of her farm for rental purposes was largely reduced. You have the evidence upon that proposition. This action was commenced on April 4th, 1914, and she sues for diminished rental value for the three years before the commencement of this action. In addition to that, gentlemen, the plaintiff is entitled to recover for any inconvenience and for' any actual and necessary expenses incurred by her by reason of the pollution of this stream and the pollution of this well, as set out in the petition, by the defendant, if you in fact find that the defendant did so pollute the stream and well.
“Now, when I say she is entitled to actual and necessary expenses incurred by reason of the pollution of this stream and by reason of the well, that does not mean that she could extend beyond what was necessary to install water on the land.”

We think it will be conceded as a fundamental and a well established principle of law that an owner of land has the right to enjoy the soil itself and the incidents thereto in its natural state unaffected by the tortious acts of a neighboring land owner, and where the land is located in such a way that a natural stream of water passes through it, the owner of the land, as a riparian owner, is entitled, as an incident to his estate, to the natural flow of the water of the stream in its accustomed channel, undh minished in quantity and unimpaired in quality.

We further think that it is a sound principle of law that in an action for damages to real property testimony is admissible to show the exact character of the injury suffered, whether of a permanent or irreparable nature, or of the sort susceptible of repair, so that the property may be restored to its original condition. If the testimony shows the former to be the nature of the injury, the measure of damages is the difference in value of the property before and after the injury. If an injury susceptible of repair has been done, the measure of damages is the reasonable cost of restoration plus the reasonable compensation for any loss of the use of the property between the times of injury and restoration, unless such cost of restoration exceeds the difference in values of the property before and after the injury, in which case the difference in values becomes the law.

The court is of the opinion that the principles of law herein-before referred to are well established in this state and we think we need refer to but one ease, which is found in the 79th Ohio State, page 263, being the case of Straight v. Hope. The second syllabus reads as follows:

“An upper owner of lands upon such stream who operates them for underlying petroleum by pumping it and the salt water with which it is commingled into tanks, and after the petroleum rises withdrawing the salt water from beneath and discharging it by gravity into the stream, is liable in compensatory damages for such substantial injuries as may be sustained by a lower proprietor in consequence of the water in the stream being thereby rendered unfit for the use of the live stock and destruction of the grass with which it comes in contact, although such is conducted with, care and is the only known practicable mode of developing the mineral resources of his lands.”

It is urged by the plaintiff in error that under no rule of damages was the plaintiff below entitled to recover for anything, save and except the diminution in the market value of the property. We do not agree with counsel for plaintiff in error in this claim. We think that the measure of damages in the present ease includes the permanent injury to the land, the diminution in rental value and the cost of installing another supply of water. In other words, the recovery is limited to the actual damages incurred in the premises as shown by the evidence.

. We have examined, with some care, the charge of the court, and we have no hesitancy in saying that we find it to be a clear and concise statement of law governing the facts pertaining to the issues in the ease, and that it fully and completely covers all of the questions involved therein.

Viewing the ease as we do, and finding the recovery to be the result of proof offered, tending to show the actual damages sustained by the plaintiff below, and finding no error in the record prejudicial to the rights of the plaintiff in error, there is but one thing for the court to do; and that is to affirm the judgment below, which we now do.

Shields, J., and Powell, J., concur.