text:
    CLAIM BASED ON SERVICES BY A MEMBER. OF THE FAMILY.
    Court of Appeals for Knox County.
    Mary Evers v. John F. Gardner, Executor of Caroline Skillings, Deceased.
    Decided, April Term, 1913.

      Relationship — Bars an Action for Services, When — Family Relation May Exist Although There is No Connection 5y Blood or Adoption.

    Relationship to a family is established without formal adoption by one who becomes a member of the family in childhood and so continued for many years after reaching maturity, and an action for services will not lie where brought by such a member of the family against the estate of the mother of the family where no agreement was made either by parol or in writing that the services should be paid for.

      Waight & Moore, for plaintiff in error.

      Owen & Carr, contra.
    Shields, J.; Powell, J., concurs; Voorhees, J., not sitting.
   This action was commenced by the plaintiff in error, plaintiff below, in the court of common pleas to recover from the estate of Caroline Skillings, deceased, the sum of $1,654.65, for work and labor performed by her for the said Caroline Skillings, in her lifetime, and at her instance and request, from January 28th, 1905, to July 15th, 19.10, at five dollars per week. She further says that no payments were made on account of said services so performed by her, and that she presented her said claim, duly verified, to the executor of the estate of said decedent for allowance as a valid claim against said estate, which said claim was by said executor rejected. Judgment was therefore prayed for the amount of said claim with interest.

Answering said petition, the defendant in error, defendant below, for a first defense denied the averments in said petition, except that he is the duly appointed and acting executor of said estate.

For a second defense to said petition the defendant averred:

That the plaintiff when about six or eight years of age went to live with the said decedent, Caroline Skillings, and remained and lived with her until her death, where she was cared for, educated, clothed and maintained during all of said years in and as a member of the family of said decedent. That the plaintiff never made any charge against said decedent, and never intended to make any charge against said decedent, and never intended to make any charge for the services described in her petition, or for any other time during which she lived with the said decedent, and asks to be dismissed with costs. ’ ’

To the second defense in said answer the plaintiff filed a reply in the nature of a general denial. .

Upon the issues made by the foregoing pleadings, trial was had, and at the conclusion of the evidence offered by the plaintiff a motion was submitted to the court to direct the jury to return a verdict for the defendant, which motion was by the court sustained, and the jury was by the court thereupon directed to return a verdict for the defendant, which was accordingly done, to all of which the plaintiff excepted. A motion for a new trial was overruled, and judgment was rendered upon said verdict. A petition in error was filed, including a bill of exceptions containing all the evidence, to reverse the judgment of the court of common pleas, and while the petition in error filed for such reversal contains numerous assignments of error, the error principally relied upon by the plaintiff in error is that the court below erred in directing a verdict of the jury in favor of the defendant.

An examination of the bill of exceptions leaves no room to question the claim made in the plaintiff’s petition that she rendered the services to and for the decedent for the time therein stated, and as therein stated, and if the issue was simply one of liability between strangers for services rendered by one to another the duty of the court would be .clear. But we are here met with the inquiry, not whether the services charged for were rendered by the plaintiff in error, but is the estate of Caroline Skillings legally liable therefor? This is the sole question made by the action of the court below in directing a verdict for the defendant. Ordinarily where one performs services for another, in the absence of any contract therefor, and the person for whose„ use such services are rendered accepts the benefits thereof, such person is liable therefor, for the law implies a promise to pay and a recovery may be had for such services. But a different rule of liability is recognized and fixed by the law in a ease where family relationship exists, as where one of such family renders services to another of the same family, no obligation to pay for such services will be implied, and no recovery can be had for such services unless the same were rendered under an express contract therefor. Hinkle et al v. Sage, 67 O. S., 256; Hawthorne v. McClure, 4 C. C., 11.

Nor is this rule limited to blood relationship, but extends to eases where the family relation exists in the absence of proof of some understanding, agreement or promise of compensation

How was it in the case at bar ? The plaintiff, when a child of tender years, was received into the family of the decedent, where she lived, and was supported, and was treated as a member of the family until the death of the said Caroline Skillings, a period of some thirty-five years. She took the family name and was recognized by the outside world as a member of the family. The relation of in loco parentis by the decedent, and by her husband until'his death, was sustained toward the plaintiff in error, not only until she reached her majority, but ever afterward until said decedent’s death. And after attaining her majority she continued in the service of the decedent, without any change of relation whatever, neither demanding nor receiving any compensation for her services under any contract made therefor. Gan she now recover as upon a quantum meruit for services so performed for the time mentioned in her said petition? True, there is ho blood relationship shown to have existed between the plaintiff and decedent, but an examination of the record clearly shows that there was a family relation existing between them for about thirty-five years, including the period for which suit is here brought, during which entire period no intention appears to have been shown by the plaintiff in error to charge for the services sued for, or any part thereof, and during which time there is an entire absence of proof of any contract having been made either in parol or in writing for said services, the burden of establishing which rests upon the plaintiff in error. Finch v. Finch, 7 Ohio Dec., Reprint, p. 673.

It frequently occurs that children and those who stand in the place of children entertain the notion that after attaining their majority they thereby become emancipated from parental control, and that any services rendered by them thereafter, while continuing to reside in the family, and supported as during their minority, entitle them to compensation therefor, upon the assumption that the law implies an obligation that the same be paid for. This is a mistaken notion, for in such case the law implies no contract; on the contrary the existence of such relation repels the presumption that such services rendered are in expectation of payment, and hence, in the absence of a contract, no recovery can be had therefor. It would seem that the continuance of the relation does not abrogate the rule of the reciprocal obligation between parent and children. Moore v. Stadden el al, Wrights Reports, 88; Pollock’s Executor v. Pollock, 2 C. C., 143.

Counsel for plaintiff in error call the attention of the court to the occasion when it was brought to the knowledge of the plaintiff' in error that she was not then and never had been legally adopted by the decedent, nor by her husband, and that this was the first intimation the plaintiff in error had of her relation to the decedent. Conceding this, and conceding further that the decedent in her lifetime knew that the plaintiff in error never had been legally adopted as her daughter, we do not see how such fact could or would in any wise affect the right of the plaintiff in error to recover against said decedent’s estate in the absence of a contract for the services sued for. It may be that such revelation tended only to increase the hardship that the plaintiff in error may have been called upon to bear in the light of her many years of labor spent in the interest of the decedent in her lifetime and upon her farm, but withal it appears that she thereafter continued in said decedent’s service until after her death, without demanding or having any contract for her services. Under the rule of law referred to, we feel constrained to hold that the court below, in sustaining said motion to direct a verdict for the defendant, and in so directing the jury, did not err.

We have also examined the record with reference to the other assignments of error contained in the plaintiff’s petition in error, and we find no such error therein for which the judgment rendered in the court below ought to be reversed.

The judgment of the court of common pleas is therefore affirmed at the costs of the plaintiff in error. Exceptions noted.


source: Caselaw Access Project

license: Public Domain

text:
    INJURY TO A TIMBERMAN IN A COAL MINE.
    Circuit Court of Guernsey County.
    The National Coal Company v. Arthur Watkins.
    Decided, November Term, 1912.

      Master and Servant — Duty of Master with Reference to Providing, á Safe Place to Work — Assumption of Risk by Servant in Making a Dangerous Place Safe.

    Tbe rule that the master must exercise ordinary care to provide a reasonably safe place in which the servant is to work, does not apply to eases in which the very work in which the servant is employed in doing consists in making a dangerous place safe, or in constantly changing the character of the place for safety as the work progresses. Therefore, when a timber man in a coal mine whose duty it is to repair the roof in the rooms and entries of a coal mine, and make a place safe for other employes to work in by placing timbers thereunder, and repair and keep safe the dangerous places in the mine, is notified that the roof in a certain place in the mine is in a dangerous' condition, and is directed to repair the same by placing timbers thereunder with no limitation as to caution he might take for his own safety, is injured by the falling of the roof while engaged in that service, he assumes the risk and can not recover for such injury.

      B. F. Scott, for plaintiff in error.

      Mr. Glenn, contra.
    Norris, J.; Pollock, JT., and Metcalfe, J., concur.
   This case is here to reverse a judgment of the court of common pleas in favor of the defendant in error. Arthur Watkins brought suit against the coal company to recover damages for personal injuries sustained by him while in the employ of the company in one of its mines by the fall of slate from the roof of the mine, causing the injury complained of.

In his petition he says he was the timberman and that he was sent to this place to do certain work. ITe charges in his petition that at the time “in violation of its duty to provide plaintiff with a safe place to work, and to keep it safe, wrongfully, carelessly and negligently, by its said agents and servants, in authority over him, wrongfully, negligently, and carelessly directed plaintiff to enter into and engage at work in an unsafe and dangerous place, at a point about fifteen feet from the entrance tó the entry known as entry number two, off entry number teD east. Said place was unsafe and dangerous in this: said defendant, unlawfully, wrongfully, negligently and carelessly permitted a large, amount of slate from the roof of said mine, and of waste and refuse from coal to be deposited theretofore, and to remain in said place at said time, and failed” and neglected to make the roof thereover safe and secure by placing timbers to sustain said roof as the coal was removed, and failed to take down and remove the loose slate, and the slate about to become loosened, and thereby rendered said place dangerous and unsafe, and failed and neglected to properly arid carefully inspect the roof to said mine at said place; and failed and neglected to take ordinary and proper care for defendant’s safety, but, on the contrary, said defendant, by its said agents and servants in authority over said plaintiff, carelessly and negligently pretended to inspect said roof, and carelessly and negligently informed plaintiff that said place was a safe place to work and that there was no danger of a fall of slate. ’ ’

An answer was filed which denied every charge of negligence, and for a second defense alleges that the plaintiff himself under his employment, on the 5th day of April, 1911, and for a long time prior thereto, was required to repair and keep safe the defective and dangerous places in said mine; that he was sent to this place and was informed that the roof thereof, as described in the petition, was loose and dangerous and he was directed to repair the same. The only error complained of in this record is that the verdict is against the weight of the evidence. We have read all of the testimony. The record is not long and it appears that on this day the plaintiff went to this place, perhaps by direction of the foreman of the mine, to repair the roof that was stated to be in a dangerous condition and in need of being timbered for the purpose of making it safe.

The placing of timbers in this mine was the duty of this plaintiff. He was employed for-that purpose. Whenever it was necessary to have timbers placed in any room or entry in the mine, he was one of the men employed for the purpose of putting those timbers in and making the roof and various places safe. That was his duty. That was what he was employed to do in that mine, and in that business, it is assumed, he was an experienced man.

Now, in this testimony there was very little conflict in the statement by the plaintiff and witnesses he produced and the foreman as to what occurred, and, taking the most favorable view for the plaintiff, he..was directed to go to this particular place to fix the roof of this mine and to support it by placing timbers there. When he' reached this place some of the men with him told him that the boss had been there and directed him to make a cut in the side, I believe what we call a rib, for the purpose of putting timber therein to support the roof at that place. Both plaintiff and. the witness Smith, who was there, testified as to what occurred, and when he went there he knew or had been informed that the roof of the mine was dangerous, and the only reason for his going there to put the timbers in was because of that, that it needed timbers to make it safe.

Now, he was given outside of this one direction, no orders as to how he should proceed and what he was to do with reference to protecting himself in this mine, nor with reference to the manner of pursuing this work and making this place in the mines a safe place in which to work. It was the duty of the mine boss, imposed by statute, to see that the roof was made safe and some person must be employed to perform that work. It necessarily may be a dangerous work, but it is work that must be done in the mine and somebody is employed to do it, and the question arises wherein was there negligence on the part of the foreman with reference to sending this man to do this work at this particular place?

It is testified by Mr. Smith, that when the plaintiff came there he suggested that they put a post up in the center to protect the roof until they could get this work done that they had been directed to do. Both Mr. Smith, and the plaintiff, as the testimony shows, tested the roof of this mine at this particular place to see whether it was a,t that time in a dangerous and unsafe condition, and that both apparently reached the conclusion that it was safe for the time being, sufficiently so that they might proceed with the work in hand without putting this post in the center while they were pursuing the work they were directed to do at that particular place.

Now, what is the rule of law applicable to a situation of this kind? Does the same strict rule apply with reference to providing a safe place for a person who is sent, who is employed to make places that are unsafe safe, and is directed by his employer to go to a certain place to make the particular locality safe for other people pursuing their work?

Stated in Thompson on Negligence, Section 3877, speaking of this rule as to the requirement of the master to- make the place safe:

“Nor does the rule under consideration apply to cases in which the very work the servants are employed to do consist in making a dangerous place safe, or in constantly changing the character of the place for safety as the work progresses.”

Now, that the plaintiff understood this rule is shown by his testimony when he is examined as. to what Smith said to him about putting a prop in there to protect him at the work in which they were engaged. The- question is, “And you paid no attention to these other men around? A. How do you mean that? Q. That is, you didn’t care whether they were working under loose slate or not?” His answer was, “Every man is supposed when he is in there to look after himself. ’ ’ He understood the duty that was imposed upon him and others working in this mine. That was known by all the employes to be an unsafe place by reason of the roof being unsafe and this man had known it. There were plenty of timbers if the plaintiff had seen fit to use them, and it seems from this testimony that if it were necessary, or he deemed it necessary in pursuing that work of timbering that peculiar locality to put temporary props under that roof, it was his duty without direction from anybody to put that timber in place, and he so understood it" because apparently there was some discussion, at least Smith says so, as to whether they should put in temporary props to protect the roof in this mine while they were cutting these places out; and taking the most favorable view of the record and testimony on the part of the plaintiff we are unable to say that the verdict of this jury is not manifestly against the weight' of the testimony.

Another question as to this slate that was located on the side of the room. It does not appear from the testimony that this was the proximate cause of this injury. It certainly did not have anything to do with the roof falling. Recently there had been a large fall of slate from this roof and some of the workmen were there engaged in piling it up, the “gob,” I believe they call it, being removed for the purpose of cleaning it up. There is not any testimony showing that this slate had been there any length of time; that the company had had opportunity to remove it if it were necessary to do so. An unfortunate accident, but is defendant liable under the law?

We have examined all the testimony in this case as carefully as we could in the light of the law and it seems to us that this verdict is manifestly against the weight of the evidence, and for that reason the judgment of the common pleas court will be reversed and the cause remanded.


text:
    FELLOW-SERVANTS IN THE RAILWAY SERVICE.
    Circuit Court of Cuyahoga County.
    Eunice Riter, Administratrix of the Estate of William Riter, Deceased, v. The Cleveland, Cincinnati, Chicago & St. Louis Railroad Co.

    Decided, February 28, 1911.

      Negligence — Section Foreman and Engineer are Fellow-Servants.

    A section foreman on a railroad is a fellow-servant of an engineer on a locomotive, and there can be no recovery against the railroad company for injuries received by the engineer due solely to the negligence of the section foreman.

      E. 8. Meyer, for .plaintiff in error.

      E. A. Foote, contra.
    Marvin, J.; Winci-i, J., and Henry, J., concur.

      Affirmed without opinion, Riter v. Railway Co., 83 Ohio State, 515.

   The parties here are as they were in the court below. The defendant is a railroad corporation, operating a line of railroad from the city of Cleveland southerly in the state of Ohio to and through the city of Columbus, Ohio. The plaintiff’s decedent, William Riter, was a locomotive engineer in the employ of said defendant. At the time of his death, on the 20th day of October, 1902, he was operating as such engineer a locomotive engine, drawing a passenger train known as No. 19, going south, at a very high rate of speed, to-wit, about sixty miles an hour, which was the scheduled rate of said train. Near the station known as Flint, some miles north of Columbus, while said decedent was running his said engine at the rate aforesaid, it turned on to a switch-track which had been negligently left open, and by reason of going on to this switch-track, the engine overturned and the engineer was killed. The plaintiff, as administratrix of the estate of the decedent, brought suit to recover damages on account of this death. The negligence charged in the petition and in the amendment thereto which was filed by leave of the court, is that the defendant ordered its section foreman to take certain heavy wooden beams upon a hand-car and move them to a point two or three feet northerly from where the switch track, already mentioned, diverted from the main track of the road, and to use these in preparing a support for what is called a mail crane, which was to be removed from a point where it had stood several hundred feet to the north and on the opposite side of the track. This section foreman, pursuant to his orders, had the timbers spoken of loaded upon his hand-car, and he together with a squad of men under his direction, moved the hand-car north upon the switch and ran the hand-ear out on to this switch. The section foreman having, by authority of the company, in his keeping, a key to the lever which had to be moved to open or close said switch.

The facts shown establish that the section foreman had charge of the squad of men doing the work of removing this mail crane and doing whatever work was required for that purpose. The train drawn by the engine in charge of the decedent passed the point where the accident occurred at the time it was scheduled to pass. In his hurry to get the mail crane erected the section foreman neglected, after he opened the switch and ran his hand-ear onto it, to close the switch again, so that the train drawn by the decedent’s engine could safely pass that point.

That the decedent was in no wise negligent is established by the evidence, and that the section foreman was negligent is equally well established, and the only question is whether the section foreman so represented the defendant as that he was the vice-principal of the employer of both the decedent and the section foreman. If they were fellow servants, the defendant is not liable. If the section foreman was the vice-principal of the defendant, as between these two employees, then it is liable. We know of no principle of law which would authorize the court to hold that the section foreman was such vice-principal.

It is urged earnestly and ably on the part of counsel for plaintiff in error that although, if the work being done by the section foreman and his squad of men was repairing the road, the foreman would not be the vice-principal, yet, if the work which was being done must be treated as work of construction the position of the foreman in relation to the decedent was altered.

We are unable to see that the work here being done changed in any way the relation between these two employees and what their relation would have been if the work being done by the foreman and his squad was simply repairing a track.

This being so, we reach the conclusion that there was no error on the part of the trial court' in sustaining a motion made by the defendant at the close of the plaintiff’s evidence to direct a verdict for the defendant, and the judgment is affirmed.


text:
    DRIVER. INJURED BY KICK OF HORSE.
    Circuit Court of Cuyahoga County.
    David Herbst v. The Schaeffer-Suhr Coal Co.
    Decided, December 17, 1909.

      Master and Servant — Negligence—Receipt in Full Settlement of Claim.

    One who has settled a claim for personal injuries received through the negligence of another and given a written receipt for the money paid him, reciting that it is in full settlement of his claim, in the absence of fraud or deceit, can not maintain an action for the recovery of damages growing out of said injuries.

      Hart, Canfield & Croke, for plaintiff in error.

      Dissette, Dissetle & DisseHte, contra.
    Marvin, J.; Winch, J., and Henry, J., concur.
   The parties here are as they were in the court below. The plaintiff was an employee of the defendant, which is a corporation. He was driving a team owned by the defendant on the 22d of May, 1906. On that day, while driving the said team which consisted of a span of horses, he was ordered to hitch the team to a large roller, for the purpose of pulling it out of a hole where it was located. To do this, he was obliged to get right behind the horses, and while on this work, one of the horses kicked him and injured his leg, to recover damages for which be brought this suit. The plaintiff says that the horse which kicked him wás known by the defendant to be a vicious animal and a kicker, equally liable at any time, without the least warning, to kick anyone without any cause whatever; that he had no knowledge of the character of the horse, and that he was not in any wise negligent in doing his work which he was doing at the time of the injury complained of. The defendant answered, admitting the employment of the plaintiff by it and that he was injured by the kick of a horse owned by the defendant; it denies, however, that it was in any wise negligent in having him use the team in the way that he was directed to use it, and further the defendant answers, that whatever claim the plaintiff had against it for such injury was fully settled on the 26th day of July, 1906, for the consideration of $24.40, which it paid to him on account of the injury. The plaintiff replies to this defense of settlement that there was not a settlement of the claim, but that the plaintiff paid him, without any solicitation on his part, but of its own free will, the sum of $24.40 while he was suffering from the injury.

On the trial there was introduced in evidence a writing which reads:

“Cleveland, Ohio, July 25, 1906.
“Received of the Schafer-Suhr Coal Company twenty four and 40-100 dollars in full settlement of accident claim for being kicked by horse.
(Signed) “David Herbst.”

This paper writing the plaintiff admits that he signed, and says he can read and that he did read this writing, and that he received at the time of the signing of this paper the amount of money therein named.

It does not appear from the evidence that any fraud was perpetrated upon him to obtain this signature, nor is any effort made in this action to set it aside or have it canceled.

We think this is a compete defense to the claim of the plaintiff, and that whatever may be said as to any'rale of the court, as to any question in relation to evidence, or whatever may have been said in the charge, the result reached was the result which should have been and must have been reached in this action.

The question in this case is settled by the base of Ferry v. The O’Neal Company, 78 Ohio St., 200.

The judgment of the court of common pleas is affirmed.


text:
    LIABILITY ON A FORFEITED RECOGNIZANCE.
    Circuit Court of Cuyahoga County.
    The State of Ohio, ex rel John A. Cline, Prosecuting Attorney, v. Angelo Liggotta, Andrea Castigline and Harry F. Payer.
    Decided, January 24, 1910.

      Recognizance — Must he Forfeited at Next Term of Court.

    Previous to the act of May 9, 1908 (99 O. L., 356), there could be no recovery against the sureties on a recognizance in a criminal case, for the appearance of the prisoner at the next term of court, unless at said term the prisoner was called, failed to appear and the recognizance was forfeited.

      John A. Cline and George C. Hansen, for plaintiff in error.

      Harry F. Payer, contra.
    Marvin, J.; Winch, J., and Henry, J., concur.
   The relation of the parties here is as in the court below.

In that court a general demurrer was sustained to the second amended petition filed in the case, and the plaintiff not desiring to plead further, judgment was rendered for the defendants.

The present proceeding is prosecuted to reverse said judgment. The only question, therefore, is as to the sufficiency of such petition.

The petition alleges that Mr. Cline is prosecuting attorney for Cuyahoga county, Ohio, and that he brings the action on behalf of the state. That Angelo Liggotta was indicted by the grand jury of said county on the 23d day of June, 1907, charged with the crime of shooting with intent to wound; that on the 5th day of July, 1907, all of the defendants personally appeared at the court of common pleas of said county and jointly and severally acknowledged themselves to owe unto the state of Ohio the sum of $2,000 to be levied of their goods and chattels, lands and tenements, if default should be made in the condition •following, to-wit: that the said Angelo Liggotta should personally be and appear before the said court, at the nest term thereof, and so from day to day, to answer unto the state of Ohio the said charge of shooting to wound, as contained in said indictment, and abide the judgment of the court in the premises, and not depart the court without leave. Said undertaking was in writing and duly filed in the said court. The next term of said court was the September term thereof, 1907. Said Liggotta did not appear at said September term of said court. On the ]ast day of said September term the ease under the said indictment was continued until the January term of said court.

Said Liggotta did not appear before the said court at the said January term, 1908, and from day to day, as by the terms of said recognizance he was bound to do, and said Angelo Liggotta did not abide the order of the court in the premises, but did depart without leave, contrary to the terms of said recognizance, and the said Angelo Liggotta then and there on the 9th day of February, A. D. 1908, at the January term of said court, was solemnly called to come into said court and answer unto the state of Ohio, the said charge preferred against him,' and came not, but made default; that said defendants, Payer and Castigline, were then and there solemnly called to come into court and bring the said Angelo Liggotta, but they came not, but made default. By reason whereof it was then and there considered that the recognizance be and was thereby forfeited, absolutely, as is shown by the records of said court.

Prayer is therefore made for judgment against these defendants for said sum of $2,000.

The statute under which the recognizance was given is Section 7161, Reveised Státutes of Ohio, and reads:

“If the offense is bailable and the prisoner offers sufficient bail, a recognizance shall be taken for his appearance to answer the charge before the court of common pleas on the first day of the next term thereof.”

It will' be noticed that the statute required that the recognizance should be for the appearance of the defendant at the first day of the next term of the court, while the recognizance described in the petition is that he shall appear at the next term of the court. An exhibit is attached to the petition, but not made a part of it, which purports to give a true copy of the recognizance, and in this language is that Liggotta shall be and appear before the court on the first day of the next term. While we may-not look at this exhibit to determine the. sufficiency of the petition upon demurrer, we may probably assume that the obligation set out in the petition is sufficient to hold the defendants to answer for any default in the September term of the court.

It is urged that the allegation of the petition “that the said Angelo Liggotta did not appear at the next term of said court” is sufficient to show that his recognizance was forfeited at that term.

If this contention be sound, all the statements as to what occurred or did not occur at the January term, would seem to be surplusage, and it does seem somewhat difficult to know just what is relied upon as having occurred at the January term, which would render the defendants liable.

It is said that the accused did not abide the order of the court, but what that order is, is not stated. It is said that he departed without leave, but if what is meant by the statement that he did not appear before the court is that he was not in or about the court room, then it is difficult to understand how he departed either without leave or with leave of the court.

Clearly the plaintiff relies for relief upon the provisions of Section 7180, Revised Statutes, which reads:

“When a person under recognizance in any criminal prosecution, either to appear and answer or to testify in any court, fails to perform the condition of such recognizance, his default shall be recorded and the recognizance forfeited in open court.”

It is because of this provision that the petition sets out the open forfeiture at the January term, recognizing what we hold to be a true construction of the statute that until such forfeiture in open court, suit can not be maintained upon the recognizance. This being so, no recovery can be had because of the failure of the accused to appear at the September term. He was not called at that term; no attempt was made to have him called, and no forfeiture was declared.

It is urged, however, that as the case was continued to a subsequent term, the liability of the sureties continued.

It is difficult to understand why the General Assembly enacted what is now Section 7160a- on the 9th day of May, 1908, found in 99 Ohio Laws, 356, if the law as it stood when this recognizance was entered into, meant what is claimed for it here. This new section reads:

“And in all cases in which an indictment or presentment is returned into the court of common pleas, such court shall require the accused to enter into a recognizance in such an amount as the court may fix. And it shall not be necessary to renew such recognizance at the end of the term or at any other time, except upon motion made to the court, or the court may upon its own motion renew the same, or, for proper cause -shown, increase or decrease such recognizance. And said recognizance, when so given, shall be conditioned that the defendant abide the order and judgment of the court and appear from day to day" and not depart without leave until such case is finally disposed of. And it shall not be necessary when said recognizance is so executed, for the accused to give any other recognizance pending any prosecution for error, but such recognizance shall continue and be in full force throughout the prosecution in error. But the court in which such error is prosecuted may for good cause shown increase or decrease such recognizance or remand the accused to the sheriff of the county in which such indictment or presentment was returned. Provided that when two or more indictments or presentments are returned against the same person at the same term, the recognizance given may be made to include all offenses charged therein.”

As to the non-liability of the sureties upon this recognizance beyond the term of the court next after its execution, we regard the case of Swank v. State, 3 Ohio St., 429, as decisive that they are not liable, and it may well be that the recent statute was enacted because of this decision.

We reach the conclusion therefore, that the judgment of the court below in sustaining the demurrer to the second amended petition was correct, and it is affirmed.


text:
    WHAT CONSTITUTES THE LEVYING OF AN ASSESSMENT.
    Circuit Court of Cuyahoga County.
    John Wageman v. City of Cleveland.
    Decided, February 7, 1910.

      Assessment — Levying Of.

    To “levy an assessment” within the purview of Section 1536-213, Revised Statutes, is to fix the amount to be paid as an assessment and. not to compel its payment.

      George C. Hatley,' for plaintiff in error.

      Newton D. Baker and G. D. Wilkin, contra.
    Marvin, J.; Winch, J., and Henry, J., concur.
   Plaintiff brings his action praying for an injunction against the defendant to prevent the collection of certain assessments made or attempted to be made by the city upon certain real estate of the plaintiff lying within the limits of the city. It. appears that on the 31st day of September, 1901. the city-made certain assessments on the property of the plaintiff for the construction of a sewer, which assessments were made payable in five installments, beginning with 1901 and ending in 1905, the first half of the last installment being payable December 20, 1905. That on the 13th of April, .1906, the city passed another ordinance, assessing this same property for a street improvement, payable in five installments, beginning with 1906 and ending with 1910.

The claim on the part of the plaintiff is that the assessments provided for in each of these ordinances constitutes the levying of an assessment as that word is used in Section 1536-213 of the Revised Statutes. (It' should here be said as to each of these assessments that they were levied to be paid according to benefits.) It is provided in the section of the statute named that:

“In all cases of assessments the council shall limit the same to the special benefits conferred upon the property assessed, and in no case shall there be levied in any lot or parcel of land in the corporation any assessment or assessments for any or all purposes, within a period of five years, exceeding 33 1-3 per cent, of the actual value thereof after the improvement is made. ’ ’

We hold that the word “levy” as used in this statute, clearly means the fixing of the amount to be paid by the assessments. The claim made here by. the defendant that the word “levy,” as used here, is used in the sense of “compel to pay” is not sound. The language is: “and in no case shall there be levied any assessment or assessments.” We can not doubt that the meaning of the statute clearly is that the council shall not fix assessments to be paid in excess of the limit named, within the specified period of five years. This is clearly shown by the construction put upon this section by the Supreme Court in the case of Gray v. City of Toledo, 80 Ohio St., 445. The statute then under consideration was Section 53 of the Municipal Code, passed October 22, 1902, found in 96 O. L., 40, and reads:

“In no case shall there be levied upon any lot or parcel of land in the corporation any assessment or assessments for any or all purposes within a period of five years exceeding 33 per cent, of the tax value thereof.”

It will be noticed that the language is the same as that of the statute now under consideration except that the percentage of the assessment, was to be but 33, while here it is 33 1-3 per cent., and the basis for the estimate of this per cent, is the tax value of the property, while in the present statute it is the value of the property after the improvement is made. But the words “assessment” and “levied” are used in exactly the sense in which they are used in the present statute, and yet the syllabus of the case reads:

“Section 53 of the municipal code of 1902 (Section 1536-213, Revised Statutes, prior to the amendment of April 21, 1904, 97 O. L., 126) -which provided that assessments upon a lot for •any and all purposes, within a period of five years, were limited to thirty-three per centum of the tax value thereof,” etc.

So that the court uses the word “assessment” as synonymous with the word “levied.”

We are then brought to the question whether the assessments provided for in the two ordinances to which attention has been, called and the second of which was passed less than five years after the passage of the first, made a levy in excess of 33 1-3 per cent, of the value of the property, after the improvements were made. The evidence in this record is conflicting, but we think the valuation, as fixed by the appraisers appointed by the city, is fair and just, and we adopt it. This shows that the levy made by the last ordinance when added to that made by the first, aggregates considerably more than the limit provided for by the statute, and to the extent of such excess the defendant will be enjoined from making collection of the assessment.

In determining the amount beyond which collection is enjoined interest will be included.


text:
    PROPER. TEST AS TO THE CHARACTER OF AN ACTION.
    Circuit Court of Cuyahoga County.
    The Union Salt Company v. Gordon Miller, Sole Surviving Partner of Alexander Miller & Brother.
    Decided, February 7, 1910.

      Petition — Allegations, Not Prayer, Determine Character of Action— Service by Publication.

    1. A petition which states a case' for money only, and nothing else, can not, by the prayer, he made a case for the interposition of a court of equity.
    2. In such a case service by publication can not be had upon a nonresident defendant under either the third or fifth paragraph of Section 5045, Revised Statutes. «

      Henderson, Quail & Sidddll, for plaintiff in error.

      Weed, Miller Rothenberg, contra.
    Marvin, J.; Winch, J., and ITenry, J., concur.
   Suit was brought by plaintiff in error against the defendant in error and William S. Miller, both non-residents of the state of Ohio. Proper affidavit was filed for service by publication. Publication of notice was made and a copy of the petition and summons was served upon each of said defendants in the state of New Jersey. In short, if the ease is^one in which the defendants could be brought into court by publication and service outside of this state, the defendants were properly brought into the jurisdiction of the-court.

The defendant in error, appearing only for the purpose of his motion, filed a motion to set aside the service made upon him, the ground of the motion being only that the case made in the petition is not one in which service by publication is authorized by law. This motion was sustained and error is prosecuted here to reverse this action of the court.

The petition is somewhat voluminous, but the substance of it is that Gordon Miller is the sole surviving partner of a co-partnership which did business under the firm name of Alexander Miller & Brother; that said firm, on the 4th day of February, A. D. 1908, entered into a written contract with the plaintiff whereby said firm was to furnish and erect on the premises of the plaintiff at Cleveland, Ohio, a certain salt manufacturing apparatus, weighing about 200 tons, capable of producing 200 tons of salt every twenty-four hours. Provision is made in the contract as to material and workmanship to be employed in the construction of such apparatus. The plaintiff was to provide a suitable building and sufficient and adequate foundation for such apparatus. The plaintiff was to pay for said apparatus in all $60,000 to be paid in monthly installments, upon estimates, the several payments to be 85% of the value of labor and materials used and applied in such -construction at the time of such payments. When the construction should be completed, the construction firm was to give it tests, and when showing by such tests that it fully met the requirements' of the contract, the entire balance of the contract price was to be paid.

Said firm entered upon the construction of said apparatus; while the work was in progress Alexander Miller, the head of the said firm, died, and the defendant in error, as -surviving partner, continued the work of construction, until he claimed and claims to have fully performed the contract on his part and on the part of said firm to be performed.

, Pursuant to the terms of the contract, the plaintiff paid from time to time estimates upon such work until it had paid 85% of the full contract price, to-wit, $51,000. The petition alleges that the apparatus, as constructed, will not do the work which it was to do; that the defendant has been unable to make it operate, and that, therefore, the defendant has failed to complete the contract on the part of said firm.

. The plaintiff further says in its petition that owing to the peculiar nature of the apparatus, and the way in which it Avas operated, experiments must be made, and alterations and changes, so as to adapt the apparatus to the work required of it; that this requires the service of persons of exceptional skill who may be required to experiment and make changes, and again make experiments and other changes so that a large amount must be expended before it can be determined whether the apparatus can be made to operate properly. The materials and machinery constituting the construction erected by the defendant and his firm are mostly iron and steel, and to prevent deterioration and loss require constant care. The plaintiff refused and does refuse to accept the apparatus so constructed, and has notified and requested the defendant to care for and protect such materials and machinery which he refuses to do, and so the plaintiff says the same is rapidly going to waste and that unless properly cared for, it will soon become of little value. The only allegation in the petition as to the defendant, William'S. Miller, is that he has, or claims to have, some interest in the salt making apparatus, which is the subject of the controversy. He had made no appearance in the case foT any purpose.

The prayer of the petition, based upon the foregoing facts is:

“Wherefore, plaintiff prays that it may be found to have an equitable lien upon the said plant and apparatus for its expenditures in connection therewith under the said contract; that the court at once appoint a receiver to take charge of the said plant and apparatus, to care for the same under the order of the court and to take such action with respect to its completion and the demonstration of its capacity as to the court may seem proper; that an accounting may be had herein as to the rights and obligations of all the said parties with reference to the said plant and apparatus; that, if it shall appear herein that the same can not be reasonably adapted to the plaintiff’s use as contemplated by the said contract, the plaintiff’s lien thereon may be protected and enforced, and that the plaintiff may be given such other and further relief in the premises as equity may require. ’ ’

It is urged that the facts stated in the petition are such as to authorize the appointment of a receiver and that one being appointed and the property being thereby taken into the custody of the court, it has full jurisdiction to determine all questions concerning such property.

At any rate, it is urged that the petition clearly shows that the plaintiff is seeking to have the property of the defendant taken'or appropriated by one of the provisional remedies provided by statute, and so, it is said, that the case comes within the provisions of Section 5045, Revised Statutes, the third subdivision of which provides for constructive service “in actions in which it is sought by a provisional remedy to take or appropriate in any way the property of the defendant, when the defendant is a non-resident of this state.” And in sub-division 5 of the same section, it is provided that such service may be had when the relief demanded consists wholly or partly in excluding him —the defendant — “from any interest therein.” It is said that this clause necessarily relates to the prayer of the petition. But it certainly is not the law that upon a petition which clearly states a ease for the payment of money only, and states nothing else, the pleader may by his prayer make a case for the interposition of a court of equity.

True, it-is said in Buchanan v. Boy’s Lessee, 2 Ohio St., 251, that:

“We do not wish to be understood as assenting to the proposition that wherever a general demurrer would have been well taken to a bill, it follows that the court has no jurisdiction. ’ ’

This language is relied upon by counsel for plaintiff in error, and quoted in his brief. However, immediately following this language in the opinion the court uses the following language:

“But when the defect is not a mere want of equity, but is some fact.that precludes the court from entering upon the inquiry whether the complainant has an equity or not, in such a case the defect is fatal to the jurisdiction.”

In the case of Barbour v. National Exchange Bank, 45 Ohio St., 135, cited and quoted from in plaintiff’s brief, the court sustains its holding upon the ground that the facts shown by the pleadings authorize the appointment of a receiver and not because one is prayed for.

Undoubtedly a court may have jurisdiction of a case in equity as well as at law where there is some defect in the petition which ■would render it subject to be held bad on general demurrer, but when all the allegations of a petition, giving the most liberal construction to the pleader, clearly show that whatever the case he has is one at law, and not in equity, the case can not be brought within the jurisdiction of equity by following the allegations of fact with the prayer for equitable relief.

Judgment affirmed.


text:
    ATTITUDE OF JUROR. WITH REFERENCE TO RECOMMENDATION TO MERCY.
    Circuit Court of Cuyahoga County.
    Antonio Mangano v. State of Ohio.
    Decided, May 11, 1910.

      Criminal Law — Qualification of Juror Who States He Would Not Recommend to Mercy.

    A proposed juror in a first degree murder case, who, in answer to a question by the prosecuting attorney os to what his mental attitude would be toward a recommendation to mercy, if he should be clearly of the opinion, after hearing the evidence, that the accused was guilty of the crime charged against him, states that under the circumstances described in the question he would not recommend the accused to mercy, may be challenged for cause, but if not so challenged, a verdict of guilty without recommendation to mercy will not be reversed because such juror served in the case.

      P. L. A. Lieghley and W. E. McMorris, for plaintiff in error.

      John A. Cline and Walter D. Meals, contra.
    Marvin, J.; Winch, J., and Henry, J., concur.
   Mangano was convicted of murder in the first degree on a trial in the court of common pleas. We are asked to reverse the judgment because of certain questions which were asked of and answered by the jurors on the voir dire.

The question substantially put to each of the jurors, about which complaint is made, was the one propounded to juror Kelley, and that reads:

“Supposing that you were cleárly of the opinion after hearing the evidence, that the defendant and bis wife had some words, perhaps a quarrel, and that he killed her, and that having killed her he then made an attack upon one of her children, a boy about nine years old, and killed him, and having killed him he made an attack upon the girl about eleven years old and killed her, and then made an attack upon a boy about two years old, stabbed it and thought he had killed it, gathered up some clothes about the place, wiped up some of the blood he had spilled and put the clothes that he had picked up in the stove, cloths or whatever they were, and then ran away and was later apprehended in the city of Akron and brought back here, suppose that while he did this you are satisfied that he was in full possession of his mental faculties, what would be your mental attitude concerning a recommendation of mercy?”

This question was answered by several jurors to whom it was put, that under the circumstances named in the question they would not recommend the prisoner to mercy. The complaint is urged here that after having so answered this question each juror making such answer pledged, if he returned a verdict of guilty, to withhold any recommendation to mercy, and we think this is practically true.

It was suggested by counsel for the state, in argument, that the statute which provides that the jury may recommend one convicted of murder in the first degree to mercy, upon which recommendation the punishment is fixed at imprisonment for life instead of being capital, was enacted so that where there was some doubt on the part of the jury as to the guilt of the accused, the jury might, by recommending the accused to mercy, relieve themselves from something of the responsibility which would result from a simple verdict of guilty. We think this is a mistaken understanding of the purpose of the statute. It was not designed that any less degree of evidence should be required to convict of murder in the first degree, because of this statute, than was required before the enactment of said statute. Before a verdict of guilty can be rendered under the statute as it is now (and as it was previous to the enactment of this statute), the provision as to a recommendation of mercy requires the state first to satisfy the jury beyond a reasonable doubt of the guilt of the accused. It would not do to say that the jury may relieve themselves from responsibility in finding one guilty of murder in the first degree upon less evidence than has always been required, by having the opportunity to recommend the prisoner to mercy. It seems to us clear that one answering this question unqualifiedly in the affirmative so committed himself on this question of mercy as not to be at liberty to act. All of the facts stated in this question might exist and a juror might still feel that his duty required him to make a recommendation of mercy. Indeed, all of the facts might exist, as stated in the question, and still a juror not be warranted in finding the prisoner guilty of murder in the first degree. The language is, as already quoted: “Supposing you were clearly of the opinion after hearing the evidence, that the defendant and his wife,” etc. One may be clearly of the opinion that a fact exists and still that fact may not be established with that degree of certainty that is required to convict a prisoner of crime. One may be clearly of the opinion that a fact exists and still entertain some doubts about its existence. But aside from this, and assuming that what is meant by the words “clearly of the opinion” is “satisfied beyond a reasonable doubt,” still facts might be developed on the trial that would make it proper that there be a recommendation to mercy. At least, that might lead unprejudiced men to recommend to mercy.

Supposing that at the time of the trial the prisoner was dying .of some malignant disease, that it was clear that within the next six months he must die from such disease, might not a conscientious juror, who had no doubt from the evidence as to the guilt of the prisoner, recommend him to mercy, for the sake of saving him from capital punishment? Other reasons for such recommendations will readily suggest themselves, and yet these jurors, when they answered this question as they did, committed themselves to the proposition that in no event, were the facts as stated in the question, would they recommend to mercy. We think it was a mistake on the part of the counsel for the state to feel called upon to ascertain what the views of the jurors were upon this question. It was stated in argument, by counsel for the state, that since the enactment of the statute allowing a recommendation to mercy there have been no persons executed for murder committed in this county, notwithstanding there have been a number of convictions for murder in the first degree. We think there may be grave doubt as to whether the prosecuting attorney oh any other citizen should feel great humiliation or great regret, that this fact exists. In any event, we feel that the question of the recommendation to mercy should be left entirely to the jury, without any suggestion on the part of counsel for the state in the first instance. But we are further of the opinion, and hold, that since no objection to any one of these jurors was made upon the ground of the answer which he had made to this question, it is too late now to make the question.

From what has been said in the opinion it is clear that we think that the juror who had answered this question as it was answered might have been successfully challenged for cause by the prisoner. Not having been so challenged, we hold that the question can not be made in the case now.

The view here talcen is sustained, as we think, not only by reason but by the case of State v. Stewart, 45 La. Annual, 1164, the last of the syllabus of which reads:

“A juror who on his voir dire states that he would qualify his ' verdict in all capital cases, is an incompetent juror to serve on a jury in a case where the defendant is charged with murder.”

And in the opinion, this language is used:

“Tobe Leveart was presented as a juror and was asked by the district attorney if he was opposed to capital punishment. lie answered that he had no scruples to the infliction of capital punishment; that on proper evidence he would render a verdict that would inflict the death penalty. But in answer to questions propounded by the trial judge, who explained to him that he would have the right to qualify his verdict, he stated he ‘ would always qualify his verdict, and would not hang any man if he could help it. ’ The juror was peremptorily challenged by the district attorney, which was sustained by the court. The juror was not competent.
“The statute which authorizes a jury in capital cases to bring in a qualified verdict, ‘guilty without capital punishment,’ was not enacted to satisfy the * * * scruples of jurors in the infliction of capital punishment. It was intended, if extenuating circumstances justified it, to authorize the jury to qualify the verdict. ’ ’

The judgment is affirmed.


text:
    CONTRACTS FOR. PROTECTION OF PROPERTY DURING STRIKE.
    Circuit Court of Cuyahoga County.
    The United States Coal Company v. Frank M. Osborne et al; Three Cases.
    Decided, May 31,1910.

      Corporations — Contracts Between, to Protect Property During Btrilce.

    A contract between several coal companies providing that they shall at joint expense, to he paid ratably by each, according to tonnage of its mines, hire guards to protect the property and employees of one of the companies and operate its mines during a strike affecting all of them, is a lawful contract, upon sufficient consideration, and not beyond the powers of such corporations to enter into.

      Henderson, Quail & Siddall, for plaintiffs.
    Marvin, J.; A¥inch, J., and Henry, J., concur.
   Each of these several cases is an appeal from the judgment of the court of common pleas made in a single case, the appeals being taken by separate defendants. The plaintiff brought suit for an accounting and payment of certain moneys which it claims to be due to it from a large number of defendants, including each of these appellants, to-wit, the Dayton Coal. Co., the Milton Coal Co. and the Superior Coal Co. The claim of the plaintiff is based upon its alleged rights growing out of the performance by it of the provisions of certain contracts, which it says were entered into between it and each of the defendants on the 8th and 11th of May, 1906. And the plaintiff uses this language in declaring what the contract was:

“Desiring to have said Plum Run mine operated on their joint account and for their joint benefit, entered into a contract with this plaintiff, by the terms of which they agreed that the plaintiff should proceed to operate the said Plum Run mine and deliver or consign the coal removed therefrom to such persons and at such places as a committee of said defendants known as an executive committee should direct, and that the said defendants last above named, would pay to the plaintiff all the expenses of every character and description connected with such operation upon presentation to such executive committee of properly receipted bills or vouchers showing the amount thereof, the same to be paid as so presented, and the plaintiff to be permitted to receive and retain five cents per ton for all the coal so mined and shipped. Thereupon the plaintiff at once entered upon the performance of said contract and in pursuance thereof, expended large amounts of money, and incurred large obligations on behalf of said defendants in preparing for and carrying on said mining operations for and in delivering and consigning said coal as provided in said agreement. By agreement of all of the said parties to the said contract such operation continued until the 20th day of June, 1906, on which date the defendants, Frank M. Osborne, J. J. Roby, George M. Jones, J. C. McKinley, Thomas E. Toung, J. P. Burton, Charles E. Maurer, Franklin Neff, John Simpson, Lute Hornickel, Hudson E. Willard, Pitt Townsend, William B. Murray, F. P. Jones, Clifford Ayres, John F. Johnson, William J. Sampson and Alfred S. McGary, many of whom were parties to the said Plum Run mine thereafter operated on their joint account and for their joint benefit by this plaintiff, entered into a contract with the plaintiff whereby it was agreed that the said operation of said mine should be continued in the same manner as that in which it had been conducted ,under the said contract of May 11, 1906, and that the said defendants last above named would assume and pay all the expense thereof from and after the time of the termination of the operations under the said contract of May 11, 1906. This plaintiff proceeded to operate the said mines, and incurred in doing so many large expenses and also at the request of the said parties incurred further expense in an effort to operate another mine known as plaintiff’s Crow Hollow mine, which effort, however, was shortly abandoned.”

These contracts, if any were made, were made at a meeting of representatives of the plaintiff and the several defendants, all of whom were operators of coal mines in what is known as the “Ohio district,” and at a meeting of what is known as the Eighth district, at Cleveland,' on May 11th.

At the time of entering into these contracts there was a general strike among the miners in'the district so extensive that it prevented the safe operation of any of the mines owned by the several parties, and the purpose of the contracts was that some one of the mines should be opened and the miners who should be employed in such mine, together with the property connected with the mine, should be protected. To do this it was resolved that:

1 ‘ A general committee of fourteen be appointed by this body, which committee shall have full power to act under these resolutions in the selection of mines to be operated, to take charge of the operation of the same; to appoint sub-committees in the several districts in which such mines may be located, and also have power to levy assessments upon our tonnage to pay any expenses incurred therein. And we hereby pledge ourselves to pay such assessments as .may be levied under these resolutions. ’ ’

That committee of fourteen was selected. Several meetings of the representatives of the parties to this suit were held]. Without stopping to enumerate the action taken at each of these several meetings, suffice it to say that the arrangement made was that this committee of fourteen should select, as the resolution provided, a mine or mines to be operated. It selected what was known as Plum Run mine of the plaintiff, as the one to beS opened. That was opened and operated, in pursuance of the resolution. A large expense was incurred in opening and operating this mine, including as was contemplated by the parties, the employment of guards to protect the miners and the property. Assessments were made upon the several parties represented at • these meetings, including these several defendants, for their proportionate share, by tonnage, of the expenses thus incurred. These expenses were paid by the plaintiff and it now seeks to recover, after an accounting, the part of such expense which it claims the several defendants should pay. There Is.no dispute here as to the amount expended by the plaintiff, nor as to the proportionate share of the several defendants, provided it shall be found that they are under obligation to pay any part of this expense. On the part of the defendants, however, it is urged that no legal contract was entered into by which they are bound to respond in any sum whatever. It is urged, first, that the alleged contract is against public policy, and it is said in argument, as sustaining this view, that the bringing of guards. to protect this' mine, which would have to be operated by strike breakers, if operated at all, was a menace to the strikers, and was calculated to bring about strife and bloodshed, not contemplated by the contract; that there were employed as guards for the purpose of protecting the miners and property, men from the Pinkerton Detective Agency, 'and that the feeling against men of that agency was such among the strikers that it was known that the employment of these men was likely to bring about the results already mentioned.

Certainly the employment of men to guard the property and the employees who should be engaged in working such property was a matter in which neither the strikers nor any other citizen outside of the parties to this contract had any interest. It was not a menace to any law-abiding citizen to have the property thus guarded. One may surely employ whom he will to guard his property and protect his employees against any danger which he apprehends, whether such apprehension be well founded or not, and whoever undertakes to interfere with or to prevent those thus guarding property and persons is himself to blame if any bloodshed or other trouble comes from such guard of property and persons. It is not for outsiders to say what number of men or how strong a guard shall be put over one’s property and employees. If one apprehends that his property, his family, or his employees are in danger of interference by outsiders having no interest in the matter, he may employ what force he will, and as long as such force coniines itself to the guarding of the persons and property which they are employed to guard, it is not the business of any outsider to interfere or complain. There was nothing in this regard in this contract against public policy.

• It is further said that this was an attempt to form a partnership between the several parties to the contract; that most, if not all of them, were corporations, and that corporations may not enter into partnership. We fail to find that this contract was in the nature of a partnership. A partnership is generally defined to be a contract between two or more persons, whereby they unite their money, effects, labor or skill, or any or all of them, with an agreement to share the losses and divide the profits in certain proportions among them. Though this definition may not be strictly accurate, there must always be in a contract of partnership some arrangement as to the division of profits. ITere there was no agreement of that sort. It was understood from the beginning that instead of there being profits, the mine would be operated at a loss, and therefore no agreement was entered into with reference to profits. It was important to the several parties to this contract that work be done in several mines. They found themselves so situated that no one man could operate his mine without the assistance of those similarly situated. They knew that for any one of them to operate a mine, it must be attended with great expense, but that if one mine could be operated as against the strikers, it would tend' to make it possible for all the mines to be operated, and so they might very well agree to share in the expense of operating some one mine. This contract was no more a contract of partnership than would be a contract between two men, A and B, each of whom wanted something done, that A .should contribute to the expense of having something done by B, for which he should be compensated by B’s agreement to do something thereafter for A.

If it be said that the promise made by these several defendants was without consideration, it is a sufficient answer to say that because of such promise the plaintiff was induced to make an outlay of money, which it would not otherwise have made, whether such outlay resulted in benefit to the promisor or not.

It has already been said in this opinion that the amount owing by each, if anything is owing, is not in dispute here. Perhaps this should be somewhat qualified, for some claim was made in argument and is made in the brief of counsel for defendant, that in no event could any one of the parties to the contract, be required to pay more than his proportionate share, estimated by tonnage, of the entire expense incurred. That is, the aggregate tonnage of the several parties to the contract being fixed, if the tonnage of any one of the defendants was, say, a twentieth part of such aggregate tonnage, then such party could be required to pay but a twentieth part of the entire expense, and not that all should pay the entire expense, so that if one failed to pay, the amount to be paid by each of the others would thereby be increased. We do not so understand the contract. The language is qs expressed in the resolution passed at the meeting at Columbus, and is: “We hereby pledge ourselves to pay such assessments as may be levied under these resolutions.”

This is a joint promise and binds all the promisors to the payment of the entire assessment. This is equally true as to the resolution passed at Cleveland on May 11th, which reads:

‘1 This association guarantees to Mr. Willard and his company the total payment to him or it of all expenses of every nature and description connected with said operation.”

The Mr. Willard mentioned in the resolution was the secretary and manager of the United States Coal Company, and this1 company was meant by the words “ITis Company” used in the resolution. The.claim made by the defendant that the contract was ultra vires on the part of any of the defendants is not well taken. The contract was made with a view to the promotion of the interests of the business of each of the parties thereto, and was a legitimate exercise of the rights of each to carry on its business, because, as has already been said, the purpose was to get one mine open to the end that others might thereby be enabled to be opened. The authority of the parties attending the meeting to which attention has been called, and representing the several defendants, is sufficiently established by the fact that all parties recognized the contract as binding in -the beginning. In any event, the plaintiff was induced to incur the expenses which were incurred by reason of this action of -the representatives of the several defendants, and this with the full knowledge of the defendants, and practically acquiesced in by all of them.

Without entering into a discussion of other points urged on the part of the defendants, we reach the conclusion that the plaintiff is entitled to recover against the several defendants the proportionate share of each, estimated on the tonnage, to make up the amount of the expenditures incurred by the plaintiff, and judgment will be entered accordingly.


text:
    SUFFICIENCY OF AFFIDAVIT IN ATTACHMENT AGAINST FOREIGN CORPORATION.
    Circuit Court of Cuyahoga County.
    The Goegbic Boiler Works v. The International Grading & Machine Company.
    Decided, May 31, 1910.

      Attachment Against Foreign Corporation.

    Process of attachment can not issue against a foreign corporation unless the affidavit in attachment states that such foreign corporation has not complied with the requirements of Section 148c, Revised Statutes.

      White, Johnson c& Gannon, for plaintiff in error.

      Goulder, Holding & Hasten, contra.
    Marvin, J.; Winch, J., and Henry, J., concur..
   Each party hereto is a corporation. The defendant in error —hereinafter spoken of as the plaintiff — brought a civil action in the court of common pleas against the Brown Hoisting Machine Co., plaintiff in error — hereinafter spoken of as the defendant.

The only service which was had upon the defendant, was the constructive service provided by Section 5045, Revised Statutes, and the ground for such service was based upon an affidavit filed in the action upon which an attachment was issued. The defendant appeared in the court for the sole purpose of making its motion to have the attachment and service set aside. The court sustained the motion. To this action of the court error is prosecuted here.

„The sole question for consideration is whether the affidavit for attachment justified its being issued.

Each of the facts necessary to justify an attachment are confessedly stated in the affidavit, except the statement as to the corporate character of the defendant. The language of the affidavit in that regard is, “Said defendant the International Grading Machine Co. is a foreign corporation incorporated and existing under and by virtue of the laws of the state of Minnesota. ’ ’

The attachment was claimed under favor of clause 1 of Section 5521, Revised Statutes, which provides for the issuing of an attachment in a civil action for the recovery of money “when the defendant is a foreign corporation, except as provided by an act, entitled ‘an act to further supplement Section 148 of the Revised Statutes’ passed May 16th, 1894, and except as provided by an act entitled ‘an act to amend Section 1 of an act passed May 19th, 1894.’ ”

These acts named in the exception are now designated in the Revised Statutes as Section 148c, and Section 148d, respectively.

By Section 148c, it is provided that if a foreign corporation doing business in this state shall make and file with the Secretary of State, a certain statement provided for in the act, it shall not be subject to attachment on the ground that it is a foreign corporation, the language being:

“Every corporation subject to the provisions of this section which complies' with its requirements shall not be subject to the process of attachment under Section 5521, Revised Statutes, or any law of Ohio, upon the ground that it is a foreign corporation or a non-resident of this state.”

And in Section 148d, this provision is made:

“Provided that such foreign corporations as comply with the provisions of Section 148c, of the Revised Statutes as amended May 16, 1894, shall not be subject to the process of attachment under Section 5521, Revised Statutes, or any law of Ohio upon the ground that it is a foreign corporation or a non-resident of this state.”

It will be noticed that the affidavit now under consideration makes no mention of whether the defendant has complied with the requirements of Section 148c, or not, and the contention of the plaintiff in error that no averment in that regard is required; that the filing of the affidavit containing the other proper averments, and then averring that the defendant is a foreign corporation, is all that is required, and that it rests with the defendant to show, upon motion to dismiss, that it comes within the exception.

Counsel for both parties are familiar with and have commented on the ease of The Edwards Manufacturing Co. v. The Ashland Sheet Mill Co., decided by the Circuit Court of'Hamilton County January 25th, 1908, and reported in 11 C.C.(N.S.), at page 479, where this precise question was passed upon, the holding being as contended for here by the defendant in error.

It is true, as said in brief of counsel for plaintiff in error, that no authorities are given by the court, nor is there any discussion of the reasons fqr holding as the court did.

In the same ease the judge of the common pleas court, though he entered into a lengthy discussion of other questions in the case, contented himself with saying:

‘ ‘ As to whether the plaintiff must not only aver in the affidavit that defendant is a foreign corporation, but must also allege that it is not within the exceptions, we are inclined to think that the rule of strict construction which applies to matters of attachment would require the plaintiff to make such additional averment. ’ ’

The case of Bradley v. Interstate Land & Canal Co., 12 S. D., 28-9, as quoted in brief of plaintiff in error, seems directly in point and to sustain the contention of the plaintiff in error. An examination of the case, however, shows that Section 499.5 of the statutes of the state provided that a warrant of attachment “may issue upon affidavit stating that a cause of action exists against the defendant specifying the amount of the claim and the grounds thereof and that the defendant is either a foreign corporation or not a resident of this territory.” (The statute having been amended while South Dakota was a territory.)

This section was never in terms amended and was in full force, unless it should be held that such amendment was affected by implication.

Section 4993 was amended in 1895, so as to provide that the property of a corporation, which has complied with the laws of the state relative to the appointment of agents, upon whom service of process may be made, is- not subject to attachment.

The court holds that this amendment of Section 4993 did not repeal or amend by implication Section 4995, and that therefore an affidavit containing all the averments required by Section 4995, o authorized the issuance of the attachment, without any averment in reference to the provisions of Section 4993, the apparent implication being that if the provisions of Section 4993 were incorporated into Section 4995, the affidavit would have been insufficient.

The argument made by counsel for defendant in error, that the words of Section 148c, that the corporation which complies with the provisions of the section “shall not be subject to process of attachment under Section 5521,” the same word “process” being in Section 148d, seems to be sound, and that the statute means not simply that the property of the foreign corporation, which had complied with the statute, should not be held under attachment, when the fact of such compliance should be made to appear, but that no process should be allowed to issue against such corporation, thereby subjecting it to the expense and annoyance of getting the property discharged upon a hearing in court, in which the fact that it had complied with the statutes might be shown, this after its property had been taken without any undertaking, with proper sureties to protect it in case the plaintiff was not entitled to the attachment.

In argument and briefs of counsel on both sides, the rule to be applied is likened to the case of indictments for crime in eases where certain acts are declared to be criminal, with exceptions under given conditions.

It is not necessary to determine whether the same rule will govern this matter that would govern in a criminal indictment. We think a fair construction of the section is as though it read that the plaintiff may have an attachment against a defendant which is a foreign corporation which has failed to do the things required by Section 148c, and when so read, an affidavit, to justify an attachment against a foreign corporation, must aver that it is a foreign corporation which has not done these things.

Without stopping to quote from Judge Phillips’ work on Code Pleading, we think the rule well stated in Section 339, and that applying that rule the affidavit filed -by the plaintiff in this case was insufficient, and the judgment is affirmed.