text:
    Chapman et al., Appellees, v. Knickerbocker Amusement Co. et al., Appellants.
    (No. 4212
    Decided January 25, 1949.)

      Messrs. Power, McConncmghey & Griffith, for appellees.

      Messrs. Key é Butter, for appellants.
   Miller, J.

This is an appeal on questions of law from two judgments of the Municipal Court of Columbus, finding each of the defendants, appellants herein, guilty of forcibly detaining the property of the plaintiffs, appellees herein.

The record discloses that on August 31, 1947, the plaintiffs entered into a written lease for a three-story building known as the Knickerbocker Theatre Building with a corporation known as Knickerbocker Burlesque, Inc., the name being changed later to Gayety Theatre, Inc. The building consisted of a theatre, restaurant and various other business showrooms and offices. On the same day, namely August 31, 1947, Knickerbocker Burlesque, Inc., entered into a sublease with Knickerbocker Amusement Company with respect to all this building excepting that portion which constituted the theatre auditorium. This sublease contained substantially the same terms as the prime lease and was for the same period of time. Each of these instruments permitted the subletting of the premises without the consent of the lessor. The sublease was recorded with the county recorder of Franklin county, and was offered and admitted in evidence. The prime lease was not recorded and was not offered in evidence. Knickerbocker Amusement Company, being in possession of the entire building with the exception of the theatre auditorium, subsequently entered into subleases with other tenants for various portions of the building. One of these subtenants was Continental Amusements, Inc., an appellant herein, whose appeal will be later considered.

The record discloses further that, sometime prior to June 1, 1948, the lessee under the prime lease indicated to the plaintiffs it was considering abandoning its lease and asked for a little extension of time to see what it could decide upon. It finally decided to abandon the lease and vacated the theatre, which was the only part of the building retained by the prime lessee, on or about June 10, 1948. The plaintiffs thereupon resumed possession of the entire building and proceeded to notify the other occupants of the building of the abandonment and requested that arrangements be made with them should they desire to continue their occupancy.

Appellant Knickerbocker Amusement Company is basing its appeal on a fact which we find is not supported by the record. If is urging, as a matter of law, that, (1) the prime lessee tendered a surrender of its lease; and, (2) that the plaintiffs accepted the surrender. The entire record is destitute of any affirmative evidence in this connection. However, the appellant urges that an offer to surrender and acceptance of surrender arise by operation of law. The burden of proving a surrender was upon the appellant, for it is a generally recognized principle that he who asserts the affirmative of an issue has the burden of proving it. The burden of proof as to any particular fact lies on that person who wishes the court, to believe in its existence, unless it is otherwise provided by law. 17 Ohio Jurisprudence, 142, Section 113. In connection with the implication of a surrender by operation of law, it is said in 32 American Jurisprudence, 766, Section 905:

“A surrender of a lease by operation of law results from acts which imply mutual consent independent of the expressed intention of the parties that their acts shall have that effect; it" is by way of estoppel. However, the intention of the landlord to accept the tenant’s surrender of the premises is important on the question of surrender by operation of law, and a surrender will not be implied against the intent of the parties, as manifested by their acts; when such intention cannot be presumed without doing violence to common sense, the presumption will not be supported. It has been said that a constructive surrender of demised premises by operation of law can be evolved from the acts of the parties only when the intent to accept, a proffered surrender is made reasonably clear and unequivocal, or is the logical and necessary result of the landlord’s conduct.”

Further, it appears in 32 American Jurisprudence, 770, Section 911:

“The purpose of a landlord to secure a new tenant and his negotiations with a prospective tenant to that end, after an abandonment of the demised premises by a tenant before the expiration of his term, although the landlord has accepted the keys and possession of the premises to protect them, but has not accepted exclusive possession, do not establish that the landlord has accepted a surrender of the lease. This is true whether or not the landlord’s efforts and negotiations to obtain a new tenant are successful. It is likewise true even though he obtains a tenant for a term longer than the original term. In other words, there is no acceptance of the surrender of the old lease at least until the execution of the new lease, and even then, even when the new lease is executed, it has been held that there is not necessarily an acceptance of the surrender of the old lease. As in the case of an actual reletting, the question whether the landlord’s purpose in his efforts to relet and such efforts do, in themselves, constitute an acceptance of a surrender depends on the intent that underlies such purpose and efforts; if it is to relet for the benefit of the tenant to reduce the damages for which he is liable, there is no acceptance of the surrender. The mere entry and taking possession of premises abandoned by a tenant, for the purpose of leasing them, is, at best, an equivocal act not amounting to an election by the landlord between an acceptance of surrender terminating the lease and his right to releí for the purpose of mitigating the damages for which the tenant is liable. * * *”

See, also, 2 McAdam, Landlord and Tenant (5 Ed.), 1359, Section 322.

We find nothing in the evidence which evinces an indication to surrender by the prime lessee, nor any acceptance of surrender by the lessors. The only evidence on this question was that of Chapman, one of the plaintiffs, who testified that prior to June 1, 1948, a request for an extension of the payment of the June rent was made; that on June 1st, the prime lessee quit paying rent; and that it moved its property from the building and notified him that it was done. It was after all this had occurred that Chapman notified the other occupants to contact him if they desired to remain in the premises. This evidence clearly establishes a breach of condition of the lease for nonpayment of rent and a forfeiture by abandonment. Where a landlord re-enters on breach of a condition a sub-lessee’s rights are no greater than those of the lessee, and the cancellation of the lease by its own terms as to one, cancels it as to all. See 7 L. R. A. (N. S.), 221, 222, and cases cited. In 2 McAdam, Landlord and Tenant (5 Ed.), 1051, Section 244, it is said:

“The under tenant is chargeable with knowledge of the contents of the original lease. Notice of the lease is generally notice of its contents.
“The subtenant’s rights are measured by those of his immediate landlord, the original tenant, and while they cannot be cut down by some new dealings between the principal lessor and lessee, yet where the principal lease comes to an end by an act done within its very terms, the subtenant’s right of possession falls with it, for ‘the cancellation of the lease, by its own terms, as to one cancels it as to both.’ ’’

See, also, 32 American Jurisprudence, 344, Section 424.

The next error assigned is that the court committed prejudicial error in the sustaining of an objection by the plaintiffs to the introduction of certain evidence by appellant Knickerbocker Amusement Company. It will be noted, however, that the court at a later date changed its ruling and allowed this evidence to be admitted. Any error it made was, therefore, properly corrected. We find no error in the record as to such appellant and the judgment is ordered affirmed.

We will next give consideration to the errors assigned by Continental Amusements, Inc., which was likewise a subtenant in the same building.

The record discloses that one of the defendants against whom a judgment was rendered was “Roxy Grill, also known as Roxy Club”; that after judgment, on motion of the plaintiffs, the court allowed the petition to be amended by changing the name “Roxy Grill,” etc., to “Continental Amusements, Inc.,” thereby making this appellant subject to the judgment-which had been entered against the appellant Knickerbocker Amusement Company. Appellant Continental Amusements, Inc., reserving its entry of appearance to the sole purpose of the motion, moved the court for an order setting aside, vacating and opening up the judgment. for the purpose of allowing it to defend the action. This motion was based on the stated reason that the judgment to which such appellant was made a party by amendment after judgment, was rendered without service upon it and that during the pendency of the action no actual notice thereof was had in time to appear and make its defense; accordingly, with the filing of this motion another motion to quash the writ of restitution issued against it was filed. Each of these motions was overruled, which are the errors being urged upon this appeal.

The evidence discloses that Continental Amusements, Inc., was operating as a subtenant a restaurant known as the “Roxy Grill,” which was named as a party defendant. The return on the summons upon the Roxy Grill shows that it was served upon William Pancake with no identification as to his relationship to the Roxy Grill. The first error assigned by this appellant is that the court erred in amending the petition after judgment by changing the name “Roxy Grill,” etc., to “Continental Amusements, Inc.” This amendment was permissible under Section 11363, General Code, which provides:

“Before or after judgment, in furtherance of justice and on such terms as it deems proper, the court may amend any pleading, process, or proceeding, by adding or striking out the name of any party, or by correcting a mistake in the name of a party or a mistake in any other respect, or by inserting other allegations material to the case, or, when the amendment does not substantially change the claim or defense, by conforming the pleading or proceeding to the facts proved. When an action or proceeding fails to conform to the provisions of this title, the court may permit either to be made conformable thereto, by amendment.”

In 31 Ohio Jurisprudence, 955, Section 348, the author says:

“The Code allows nearly the same liberty of amendment after judgment as-, prior to the Code, was allowed before judgment. Under its liberal provisions, amendments to pleadings may be permitted after judgment, to bring in new parties, to make pleadings conform to proof, etc., when such amendment is in furtherance of justice and consistent with the rights of the parties to the action.”

We are, therefore, of the opinion that the amendment was proper.

The next error assigned is that the court erred in overruling the motion of appellant Continental Amusements, Inc., to set aside, vacale and open up its judgment rendered by virtue of the amendment to the petition. This motion should have been sustained for the reason that the return of the summons does not show proper service upon this appellant. The return shows only that service was made upon William Pancake. There is no identification of William Pancake other than as an individual. The right to amend under Section 11363, General Code, cannot eliminate the basic requirement that process must be served or an appearance entered before a judgment can be entered against any person or corporation. The statute expressly provides for the amendment of “any pleading, process, or proceeding,’’ etc. Section 11288, Genera] Code, provides the manner in which process may be served upon a corporation. Only such agents or officers may be served as are designated by law as possessing power to receive service.

In the case of Towne v. National Machinery Co., 10 Ohio App., 265, at page 270, the court says:

“We are well aware of the rule that the statutory method of service of summons on a corporation is mandatory and must be strictly followed, and it naturally results that where the statute designates a particular officer or person or class of persons, on whom process shall be served, this requirement must be complied with in order to obtain jurisdiction. This rule is announced in various textbooks and in many adjudicated cases and admits of no uncertainty.”

See, also, Fee v. Big Sand Iron Co., 13 Ohio St., 563.

We are, therefore, of the opinion that the judgment against appellant Continental Amusements, Inc., is void for the lack of proper service of summons. The motion to quash the writ of restitution should have been sustained and the refusal of the court to do so constituted reversible error.

The judgment against appellant Continental Amusements, Inc., is reversed and the case is ordered remanded to the trial court for further proceedings according to law.

Judgments accordingly.

Wiseman, P. J., and Hornbeck, J., concur.


source: Caselaw Access Project

author: Matthews, P. J.

license: Public Domain

text:
    Rhude, Appellee, v. Ed. G. Koehl, Inc., Appellant.

      (No. 177
    Decided October 25, 1948.)

      Messrs. Nichols, Speidel £ Nichols and Mr. Harold Pre'dmore, for appellee.

      Messrs. Rendigs £ ¡dry and Messrs. Ely, White £ Davidson, for appellant.
   Matthews, P. J.

It is admitted that a collision occurred between an automobile in which the plaintiff was riding and a truck owned by the defendant. The automobile was moving along a public highway and the truck was stationary within the bounds of that highway.

(1) Whether the collision was caused by the automobile departing from the traveled portion of the highway or by the truck or some portion of it extending on or over the traveled portion was in dispute, and the evidence was conflicting. The jury found for the plaintiff. The jury must have found that some part, of the truck extended on or over the traveled portion of the highway. On this record, we must accept that fact as established. And accepting that fact, then was ample evidence to justify the jury in concluding that the truck was parked in a negligent manner, and that such negligence contributed to the collision, creating a liability on the part of the negligent person for injuries directly resulting therefrom.

(2) There was no evidence that the plaintiff took any part in the operation of the automobile or that he had the right to control its operation. He was a guest. Any negligence of the operator could not be imputed to plaintiff. It is true that the court left to the jury the issue of whether the operator was the plaintiff’s agent, but this was done at the defendant’s request, and, of course, error cannot be predicated upon it. The charge on the subject was correct.

(3) It is urged that any negligence of the ’operator of the truck cannot be imputed to the defendant, because he was not acting for and on behalf of the defendant and in the scope of employment at the time of the collision. The evidence on this issue is as follows:

The defendant’s feed and coal business was located in Reading, Ohio. It owned the truck with which the automobile collided. Gordon Russell was employed by it as a truck driver and made deliveries for it. He lived on the highway where this collision took place. He had on many occasions used this truck to go to his home from the defendant’s place of business and return thereto, keeping the truck overnight in the yard at his home. Russell had some authority to solicit orders for defendant and in one instance had sold coal for defendant to one Jones who lived a mile or a mile and one-haif beyond Russell’s home on a road that intersected the highway in question. Sometime, perhaps a month, before this accident, he had been authorized to solicit another order from Jones, but had done nothing about it.

On the day of the collision, according to the testimony of Russell, he concluded to try to sell some coal to Jones and started from home in the truck for that purpose. Before he reached the place where the highway was intersected by the road on which Jones lived, Russell discovered that he had no cigarettes and concluded to go on beyond that point, a mile or so, to Goshen to get cigarettes. He went on to Goshen where he stayed an hour or so and then started back. As he approached the road on which Jones lived, Russell could see Jones’ house and yard. He knew that Jones had the habit of parking his automobile in his yard, which could be seen from the highway.

On this occasion Russell looked as he was returning and not seeing the .Iones’ automobile in the yard concluded that Jones was not at home, and so proceeded to his (Russell’s) home without seeing Jones. Russell was obliged to cross the highway and open a gate in order to get into his yard. To open the gate he had to park the truck. It was while the truck was parked and while he was pushing the gate open when the collision occurred.

All these details were' testified to by Russell. It is assigned as error that the court permitted counsel for plaintiff, who had called him as a witness, to refresh his recollection by calling his attention to statements made by him on previous occasions.

We see no error in this respect. The manner of conducting an examination rests largely in the discretion of the trial court. When it is considered that Russell was the employee of defendant at the time of this accident and at the time of trial, and that he was charged with responsibility for this collision, we can see no abuse of discretion in allowing this method of examination. There was no harassment of the witness and, when his memory was refreshed, he testified that what he had said on the prior occasion was the fact.

But it is strongly urged that this testimony is insufficient to show that Russell was acting for and on behalf of the defendant at the time of this collision, that he departed from the scope of his employment when he went to Goshen for cigarettes, thereby becoming engaged in his own enterprise, and that he never returned to the business of the defendant.

The evidence shows that, as Russell approached the Jones’ residence in each instance, his purpose was to interview Jones and endeavor to sell coal to him. That was Russell’s original purpose when he left his home, and it was his purpose when he left Goshen. To complete either purpose required his return to the place where the collision occurred. Had he actually solicited Jones, Russell’s purpose on his return trip would have been to reach his home, but still it would have been his employer’s business, because the return was a mere incident of his going. Amstutz, Admr., v. Prudential Ins. Co. of America, 136 Ohio St., 404, 409, 26 N. E. (2d), 454. It was necessary in order to complete the execution of the authority conferred upon him.

It is not at all unusual to have the question, whether the employee is acting within the scope of his authority, turn upon the motive or intent of the employee. If his purpose is to promote the business of the employer, the act may be within his authority, but if the purpose is to serve some other purpose and no purpose of his employer, it is without his authority. And usually such purpose or intent can be proven only by circumstantial evidence. This case is distinctive only in that the agent himself testified as to his intention. That the employee’s intent or purpose is determinative in many situations is clear from the cases. The second paragraph of the syllabus of Nelson Business College Co. v. Lloyd, 60 Ohio St., 448, 54 N. E., 471, 71 Am. St. Rep., 729, 46 L. R. A., 814, is:

“When the act complained of may or may not be, from its nature, in the course of the servant’s employment, and this depends upon the real motive or purpose' of the servant in doing the act, it is a question for the jury to determine upon a consideration of all the circumstances adduced in evidence.”

The accident in the instant case occurred at a place where Russell would have operated the defendant’s truck had there been no deviation. The accident did not occur on that part of the route necessary to accomplish the purpose personal to Russell. As to the effect of a deviation by an employee from the course of his employment, it is stated in 35 American Jurisprudence, 990, Section 555:

“A temporary deviation or departure from the employer’s business merely suspends the relation of master and servant, and the liability of the master for the servant’s acts during the period of the departure; when the object of that departure has been accomplished and the servant reengages in the discharge of his duty, the responsibility of the master for the servant’s acts immediately attaches. Where there is a temporary abandonment, the master again becomes liable for the servant’s acts when the latter once more begins to act in his business.”

And, at 992, Section 557:

‘ ‘ According to the rule of many courts, the employer may be held liable for the torts of his servant which are committed after the personal business of the latter has been concluded and while he is returning to the place where he departed from the designated course. Some courts hold that the mere fact that an employee using the car for his own business or pleasure is returning.to the master’s garage, or to his employment, when the injury occurs, does not alone constitute such a resumption of his master’s business as will render the master liable for the injury. The truth is that no hard and fast rule on the subject either of space or time can be applied. It cannot be said of a servant in charge of his- master’s vehicle, who temporarily abandons his line of travel for a purpose of his own, that he again becomes a servant only when he reaches a point on his route which he necessarily would have passed had he obeyed his orders.”

We have considered other errors assigned and find none of a prejudicial nature. We are of the opinion that the issues were fairly submitted to the jury under a charge containing no substantial error.

E^or these reasons, the judgment is affirmed.

Judgment affirmed.

Matthews, P. J., Ross and Hildebrant, JJ., concur in the syllabus, opinion and judgment.


author: Ross, P. J.

text:
    Clifton, a Minor, Appellee, v. Holliday, Appellant.

      (No. 7061
    Decided February 21, 1949.)

      Mr. John M. McGaslin and Mr. Richard H. Penmngton, for appellee.

      Mr. Robert M. McIntosh and Mr. Peter J. McCarthy, for appellant.
   Ross, P. J.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Hamilton county, entered upon a verdict of a jury in favor of the plaintiff in the sum of $2,000 and reduced by the court, on consent of plaintiff to remittitur, to $1,000. Summons was returned October 6, 1947.

The plaintiff, in her amended petition, states that she is a minor; that the defendant operates the “Beechmont Riding Club” where saddle horses may be hired for riding; that, on May 20, 1947, at about 4 p. m., she applied to the defendant’s employee for a saddle horse to ride; that a horse was saddled for her; that she mounted it and was directed by such employee to ride the horse to a nearby “riding ring” (a circular path used for exercising horses); that she proceeded toward the ring, but ‘‘after having gone about seventy-five feet the horse turned' and bolted toward the stable door, that she was unable to control the horse and was carried through the door into the stable”; and that her head struck a beam and she was thrown off the horse and severely injured, her scalp being badly cut and torn. Plaintiff states further that the defendant was negligent in that “knowing the proclivities of horses to return to the stable, habitually, kept a bar across the aforementioned door just for the purpose of preventing horses from running back to their stalls from outside, but that said defendant failed to place said bar across the stable door during the time plaintiff attempted to go riding.” (Emphasis in quotations added.)

The answer was in effect a general denial.

Trial resulted in a verdict of $2,000 for the plaintiff. A motion non obstante veredicto was filed by the defendant and overruled. Judgment was entered on the verdict for $2,000. A motion for new trial was filed and, after consent to remittitur of $1,000, was overruled, and judgment entered for the sum of $1,000. An appeal on questions of law is taken to this court from such judgment.

It may be questioned whether the petition in this case states a cause of action; in any event, the evidence fails to sustain any cause of action against the defendant.

It appears from the evidence that the plaintiff, a young married woman 18 years of age, lived in the neighborhood of defendant’s stables and saw various persons hiring horses and riding them, that upon the day hereinbefore mentioned she went over to the defendant’s stables and asked an employee for a horse to ride, and that she was asked if she could ride and she told the attendant she had ridden before. It appears from her own evidence that plaintiff had been riding horses ever since she was 12 years of age and was thoroughly familiar with saddle horses. Plaintiff told the attendant she did not want a “dead head.” She was shown a particular horse and she said it would be satisfactory.

Plaintiff was directed to try the horse first in a nearby riding ring and she started to ride toward it, when, feeling that the saddle was loose, she turned the horse about to ride back and have the saddle adjusted.

When the horse was turned it “reared up, took off towards the barn.”

The plaintiff states she “sawed” on the reins, but the horse ran back into the lower part of the barn through a low door and toward its stall. The plaintiff “ducked” the lintel of the door, but apparently her head struck a low beam inside the barn and she was knocked from the horse and suffered severe injuries to her scalp and head.

There is not the slightest evidence in the record to indicate that this particular horse possessed any peculiar characteristic not common to all saddle horses. In fact, it will be noted in the amended petition, and the testimony of a number of witnesses for the plaintiff sustain the statement therein, that it is a normal characteristic of horses in general and particularly hired riding horses to return to their stalls if permitted to do so. The plaintiff states the defendant knew this and should have' had a bar across the entrance to the stable. There is evidence that the defendant at times maintained a bar across the entrance to the stalls. There is no evidence that this fact was. known to the plaintiff. The familiarity with horses, admitted by plaintiff, would justify the conclusion that she also knew of this normal propensity of horses to return to their stalls. There .is not the slightest evidence that this particular horse was vicious, intractable or more unmanageable than any normal horse.

The position of the plaintiff in assigning the absence of the bar across the door as the proximate cause of her injuries presupposes that the horse either was not or could not be controlled by the rider, for if it is a normal characteristic of all horses to return to their stalls, certainly it would seem that, unless controlled, they will do so. Two things will keep them from going back to their stalls, one, control by the rider, the other, an obstruction across the entrance to the stalls. If the rider has no responsibility, it is difficult to see how a horse could ever be ridden away from the stable.

Wherever horses are used for riding, there Is present a contests of wills, the inclination of the horse and the purpose of the rider. If the latter does not know how to control the normal horse, obviously the horse will have its way. Again, there is no evidence that this particular horse had any characteristic not possessed by riding horses in general, which would prevent normal control of its actions.

The obvious, inescapable conclusion, deducible from the evidence, is that the plaintiff’s injuries were caused solely by the fact that she could not or did not control this (according to her own statement and allegation) perfectly normal horse.

To justify the plaintiff’s conception of liability of the defendant, it must be accepted as a predicate that all horses are uncontrollable, that is, that riders have no control over the actions of horses; that they will all run to their stalls; and that the sole means of preventing injury to such riders is to have bars across the entries to the stalls. In other words, one who hires a saddle horse is not presumed to be able to control its movements. Such a predicate for responsibility is completely untenable and has been repudiated by all courts in considering cases involving questions of liability growing out of the use of hired saddle horses.

The syllabus in Troop A Riding Academy v. Miller, 127 Ohio St., 545, 189 N. E., 647, is as follows:

“1. One who rides a horse, which he has hired for that purpose, takes the ordinary risks incident to such pursuit.
“2. In order to recover for injuries received when a horse hired for riding runs and falls, one who sues in tort must show knowledge, on the part of the owner or his agents, of some trait, condition or propensity from which a probability of the horse’s running away or falling might reasonably be inferred.
‘‘3. When there is no evidence of any known trait, condition or propensity of the horse, which would subject the rider to greater risks than ordinarily attach to horseback riding, it is error for the trial judge to submit such case to the jury. Defendant’s motion for an instructed verdict should be granted.”

To the same effect is Reynolds v. Kenwood Riding Club, Inc., 59 Ohio App., 453, 18 N. E. (2d), 612, where it is stated in the first paragraph of the syllabus:

“A person riding a hired horse must take the ordinary risks incident to such pursuit and, in order to recover in tort from the owner of the horse for injuries sustained as a result of being thrown from the horse, the rider must show that the owner had some knowledge of a trait, condition or propensity of the horse, which was not as obvious to the rider as to the owner, that would subject the rider to greater than the ordinary risks of riding.”

There may be peculiar circumstances involving a particular horse, justifying liability as where the rider is inexperienced, and the horse is known by the owner to be unbroken, as was the case in Cousino v. Huss, 71 Ohio App., 107, 47 N. E. (2d), 919, or where the equipment furnished with the horse is defective, or improperly or negligently adjusted, as was the case of Wenrick v. Hendrickson, 17 Ohio Law Abs., 451, 456.

Negligence is never presumed. It must be proved, and it must be shown to be the proximate cause of a plaintiff’s injuries.

There is no evidence in the record indicating a standard of care appropriate to the operation of riding facilities requiring a bar across the door or entrance to the stalls for horses rented for riding. On the contrary, the evidence is to the opposite effect. That it is necessary to introduce evidence sustaining such standard of care in cases in which the public has not common knowledge of the requirements is held in Englehardt v. Philipps, 136 Ohio St., 73, 23 N. E. (2d), 829, where it is stated in the second paragraph of the syllabus :

“Legal liability for negligence is based'upon conduct involving unreasonable risk to another, which must be established by affirmative evidence tending to show that such conduct falls below the standard represented by the conduct of reasonable men under the same or similar circumstances.”

And, at page 78, it is stated :

“Legal liability for negligence is based upon conduct. involving unreasonable risk to another which must be established by affirmative evidence tending to show that such conduct falls below the standard represented by the conduct of reasonable men under the same or similar circumstances. Moreover, in determining whether the defendant should recognize the risks which are involved in his conduct as being unreasonable, only those circumstances which the defendant perceives or should perceive at the time he acts or fails to act are to be considered. Until specific conduct involving such unreasonable risk to the plaintiff is made manifest by some evidence, there is no issue to submit to the jury.”

The defendant in the instant case moved for a directed verdict at the conclusion of ail the evidence. This motion should have been granted, and this court renders the judgment for the defendant which the trial court should have rendered.

Accordingly, it is unnecessary to comment on other assignments of error.

Judgment reversed.

Ross, P. J., Hildebrant and Matthews, JJ.,-concur in the syllabus, opinion and judgment.


author: Carpenter, J.

text:
    The State of Ohio, Appellee, v. Williams, Appellant.

      (No. 4216
    Decided May 19, 1947.)

      Mr. Joel 8. Bhinefort, prosecuting attorney, for appellee.

      Mr. Morton Neipp, for appellant.
   Carpenter, J.

James Deadwyler, Edward Williams and Winston Caffee were jointly indicted for murder in the first degree of Carl Mazzurco. The charge was that they beat him on the head causing death. In a former joint trial Caffee was acquitted and the jury disagreed as to Deadwyler and Williams. In the trial' now under review, the jury found them guilty and recommended mercy. They received life sentences and Williams filed this appeal.

The two men had been about Toledo together most of the day, April 30, 1946. Mazzurco was a wholesale grocer and late in that afternoon, after making a delivery of goods from his truck to a retail store at the corner of Nebraska avenue and Division street, he had some words with one or both of these defendants, and, as it is almost undisputed, Deadwyler attacked him with a piece of wood. Several witnesses testified that Williams also clubbed decedent, but this was disputed by other witnesses. From the head wound received, Mazzurco died the next day.

1. It is assigned as error that the court abused its discretion in granting the state’s motion to try the defendants jointly. That motion was filed under Section 13443-3, General Code, the material part of which provides that persons “jointly indicted for a capital offense,, each of such persons shall be tried separately unless the court for good cause shown on application therefor by the prosecuting attorney * * * order said defendants to be tried jointly.”

The court’s journal does not show that this motion was ever formally acted upon by it. The journal does show that there was a joint trial of all three defendants, and in the record now before the court it does not appear that any objection was made to or question raised about the joint trial of Deadwyler and Williams. The burden was upon the state to show “good cause” for this procedure, and under this state of the record it must be assumed that such was done and the motion granted. At this time, the burden of showing that there was an abuse of discretion was on the defendant-appellant, which is not sustained.

2. Another complaint is that, over the defendant’s objection, the prosecuting attorney was permitted to cross-examine him about a conviction on an assault charge and sentence to the guardhouse for a year imposed by a court-martial while he was in the army; also about his dishonorable discharge from service, and his numerous changes of employment since. It is contended that he did not put in evidence his character or reputation and this cross-examination was improper. The state could not have offered the evidence elicited therefrom in chief, but when defendant took the stand he was subject to the same tests as to his credibility as any other witness, and the court did not abuse its discretion in this respect. Hanoff v. State, 37 Ohio St., 178, 41 Am. Rep., 496; Harper v. State, 106 Ohio St., 481, 140 N. E., 364.

3. After Williams was arrested, he was interviewed about this matter by two police officers of the city of Toledo, and he signed the stenographer’s transcript of what was said. Before this trial, counsel for Williams served upon the prosecuting attorney a request for “copies of any and all instruments in writing * * * which are intended to be offered in evidence at the trial in behalf of the state of Ohio.”

In the cross-examination of defendant, he was asked about statements made in the interview which were at variance with his testimony, and, in that connection, the transcript was received in evidence over objection.

Reliance is put upon Section 11554, General Code. This is part of the Code of Civil Procedure, but under Section 13444-1, General Code, it applies here. Section 11554 provides:

“Either party, or his attorney, if required, shall deliver to the other party, or his attorney, a copy of any instrument of writing whereon the action or defense is founded, or which he intends to offer in evidence at the trial. * * * ”

The state’s action was not “founded” on this instrument, and it does not appear that when demand was made for copies, the prosecutor intended to offer the instrument in evidence. At that time he did not know that the defendant (a) would take the stand as a witness or (b), if he did, that his testimony would differ from his written statement.

4. Three special instructions to the jury were requested by defendant before argument. Section 13442-8, subdivision 5, General Code, authorizes such requests, but that provision is not mandatory. Blackburn v. State, 23 Ohio St., 146, 165; Wertenberger v. State, 99 Ohio St., 353, 124 N. E., 243; Curtis v. State, 113 Ohio St., 187, 212, 148 N. E., 834.

The only requirement is that, if the requests are correct and are not given before argument, the court must give them in substance in the general charge. Grossweiter v. State, 113 Ohio St., 46, 48, 148 N. E., 89. It is conceded in the defendant’s brief that they were covered in the charge.

5. It is contended that the verdict was manifestly against the weight of the evidence. On the whole record, this assignment is not sustained.

As we find no error prejudicial to defendant, the judgment is affirmed and cause remanded for execution of sentence.

Judgment affirmed and cause remanded.

Stuart and Conn, JJ., concur.


author: Wiseman, J.

text:
    In re Estate of Kessler.

      (No. 446
    Decided March 24, 1949.)

      Mr. Ellis W. Kerr, for administrator of the estate of Gaynor Kessler, appellee.

      Mr. Baircl Broomhall, for administrator of the estate of Emma Kessler, appellant.
   Wiseman, J.

This is an appeal on questions of law from a judgment of the Probate Court of Miami county.

Gaynor Kessler and Emma Kessler, husband and wife, residents of Miami county, Ohio, both sustained injuries in a common accident in the state of Morida in December 1944. Both died as the result of the injuries within a period of 30 days after the date of the accident, the date of death of Emma Kessler being December 31, 1944, and the date of death of Gaynor Kessler being January 18, 1945. Both died intestate and without issue of their bodies.

During life, and on the date of death, Gaynor Kessler and Emma Kessler were the owners of a joint and survivorship checking account in the Tipp Citizens National Bank in the sum of $4,150.73 and the owners of a joint and survivorship savings account in the Milton Federal Savings Association in the sum of $1,505. The administrator of the estate of Gaynor Kessler included the entire sum in the accounts in the inventory; and the administrator of the estate of Emma Kessler included one-half of the accounts in the inventory of her estate. The issue arose on exceptions to the inventories in both estates.

The matter was submitted to the court ou an agreed statement of facts. The trial court found the entire proceeds of the checking account and of the savings account to be assets of the estate of Gaynor Kessler, from which finding and judgment this appeal is taken.

No factual question is presented. It is agreed that the accounts were created under a joint and survivor-ship contract. The legal question presented is whether under joint and survivorship contracts the entire proceeds of the accounts, upon the death of Emma Kessler, passed to Gaynor Kessler, or whether, as contended by appellant, the administrator of the estate of Emma Kessler, one-half only in the proceeds of the accounts passed to Gaynor Kessler.

Appellant contends that Section 10503-18, General Code, applies. That section provides in part:

“* * * * When the surviving spouse or other heir at law or legatee dies within three days after the date of death of the decedent, or within thirty days after the date of death of such decedent if such death resulted from a common accident, the estate of such first decedent shall pass and descend as though he had survived such heir at law or legatee. * * * ”

It is conceded that the death of Gaynor Kessler and Emma Kessler resulted from a common accident, and that his death occurred within 30 days after the death of Emma Kessler.

Appellant contends that this provision of the statute makes each party a survivor of the other as a matter of law and preserves to the estate of each the vested right which each had in the joint and survivorship account which they established by contract during their lifetime. We do not agree with this interpretation of the statute. The purpose of this statute was to prevent double inheritance. The effect of this provision of the statute is not to make each decedent the survivor of the other, and as a consequence, each decedent the heir of the other, but rather to deprive the second decedent from taking any part of the estate of the first decedent when death occurs under conditions set forth in the statute. In re Estate of Metzger, 140 Ohio St., 50, 42 N. E. (2d), 443. Furthermore, Section 10503-18, General Code, affects only the right of the second decedent to inherit any part of the ‘ ‘ estate ’ ’ of the first decedent. Ostrander, Admr., v. Preece, Admr., 129 Ohio St., 625, 196 N. E., 670, 103 A. L. R., 218. This statute operates in the field of the law of inheritance and has no application to rights vested under contract law. The accounts in question never became a part of the “estate” of Emma Kessler, deceased.

It is well established in Ohio that where two persons create a joint account in a financial institution and contract that the balance in the account is payable to either or to the survivor upon the death of either, the ownership to such funds, upon the death of either, passes to the survivor by virtue of the contract. Berberick v. Courtade, 137 Ohio St., 297, 28 N. E. (2d), 636; Sage, Exr., v. Flueck, 132 Ohio St., 377, 7 N. E. (2d), 802; Oleff, Admr., v. Hodapp, Gdn., 129 Ohio St., 432, 195 N. E., 838, 98 A. L. R., 764; In re Estate of Hutchison, 120 Ohio St., 542, 166 N. E., 687; Cleveland Trust Co. v. Scobie, Admr., 114 Ohio St., 241, 151 N. E., 373, 48 A. L. R., 182; Arthur v. Witmeyer, Exr., 39 Ohio Law Abs., 505, 53 N. E. (2d), 915.

A distinction is clearly drawn between cases involving “joint account” and a “joint and survivor-ship account.” A different rule obtains with respect to joint accounts. A joint and survivorship account at the time it is created carries a present vested interest and is not affected by the laws of descent and distribution. Oleff, Admr., v. Hodapp, Gdn., supra.

Appellant cites and relies on the unreported case of Hitchcock v. Semple, decided on April 8, 1934, by the Court of Appeals for Ashland county. A motion to certify was overruled by the Supreme Court. A careful examination of that opinion shows that a factual situation was presented respecting the character of the investment. The court’s decision was based on the finding of fact that the purchaser of the bonds gave instructions that the bonds should be registered in the names of the decedents The bank, however, requested the bonds to be registered in the names of the decedents, or the survivor. The court properly found that the survivorship feature was added without authority and that a joint ownership was created, and in accord with this finding the court ordered one-half of the proceeds distributed to the estates of each of the decedent owners. That case is clearly distinguishable from the facts in the instant case.

There being no error in the record prejudicial to the appellant, the judgment is affirmed.

Judgment affirmed.

Miller, P. J., and Hornbeck, J., concur.


author: Guernsey, J.

text:
    The State of Ohio, Appellee, v. Singleton, Appellant.
    (No. 21141
    Decided March 30, 1949.)

      Mr. Frank T. Cullitan, prosecuting attorney, and Mr. Saul S. Danaceau, for appellee.

      Mr. Stephen M. Young, for appellant.
   Guernsey, J.

An indictment against the defendant, Jolm W. Singleton, on a charge of larceny by trick (Section 12447-1, General Code) was returned by the grand jury of Cuyahoga county at the January Term of 1948 and presented to the court on February 5, 1948. The indictment contained 15 counts, in each of which there was a charge which, except for a different name, date and amount in each instance, read as follows:

“Indictment for Larceny by trick — (G. C. 12447-1 with Counts.)
“The State of Ohio }
} SS
“Cuyahoga County }
“On the term of January in the year of our Lord One Thousand Nine Hundred and Forty-eight.
“The jurors of the grand jury of the state of Ohio, within and for the body of the county aforesaid, on their oaths, in the name and by the authority of the state of Ohio,
“Do find and present that John W. Singleton, on or about the 8th day of July, 1947, at the county aforesaid, did unlawfully obtain possession of certain money in the amount and value of twenty-one hundred and twenty-five dollars from Charles L. Bradley, the property of Charles L. Bradley and did obtain said property from the said Charles L. Bradley with the consent of the said Charles L. Bradley, which consent the said John W. Singleton induced by false and fraudulent representations and pretenses, with the intent of permanently depriving said Charles L. Bradley of said twenty-one hundred and twenty-five dollars ($2,125) contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Ohio. ’ ’

On March 16, 1948, the prosecuting attorney furnished and filed an amended bill of particulars, being the bill of particulars of the offense charged in the indictment upon which the cause was submitted, which reads as follows:

“Responding to the application of the defendant, John W. Singleton, for a bill of particulars, the prosecuting attorney says that the said defendant, John W. Singleton, during the period of time beginning with February, 1947, and ending with November, 1947, both months inclusive, carried on and carried out a scheme and artifice to trick and to defraud each and all of the persons named in the various counts in the indictment and numerous other persons, all of whom shall be hereinafter referred to as victims, the said scheme and artifice being a swindle.
“The defendant, John W. Singleton, in the county of Cuyahoga and state of Ohio and within the period of time aforesaid, set up an extensive business and establishment with agents, employees and associates acting under his direction and control and proceeded to operate ostensibly as a dealer in automobiles using in the cotirse of his activities such names as J. & W. Sales Service, Louis Auto Sales and J. W. Singleton Motors Inc.
. “The defendant, John W. Singleton, falsely and fraudulently represented and pretended to each of the said victims that he, the said John W. Singleton, was an automobile dealer licensed by the state of Ohio.
“The defendant, John W. Singleton, falsely and fraudulently represented and pretended to each of the said victims that he would deliver a designated new automobile to each of said victims for the money given him or his agents or employees by each of the said victims.
“The said defendant, John W. Singleton, falsely and fraudulently represented and pretended to each of the said victims that such designated new automobile would be so delivered to each of the said victims within ten weeks, and falsely and fraudulently represented and pretended that in the event such delivery was not made the moneys would be refunded to each of said victims within said period of ten weeks. During the earlier part of the aforesaid period beginning with February, 1947, and ending with November, 1947, the precise time being unknown, the period of time within which the automobiles were to be delivered or the moneys refunded was six weeks; and for a short period of time during the earliest portion of said period of time, the precise time being unknown, such deliveries or refunds were to be made within four weeks.
“To entice the said victims and to induce said victims to turn over to the defendant their moneys, the said defendant, John W. Singleton, caused to be delivered to numerous other persons practically new automobiles at prices substantially less than the prices paid for said automobiles by the said defendant, John W. Singleton, the said John W. Singleton appropriating part of the funds of said victims to make payment therefor and appropriating to his own use and purposes the remaining part of the funds of the said victims; and the said defendant, John W. Singleton, did not intend to deliver said automobiles to the said victims and did not intend to refund said moneys to the said victims.
“The defendant, John W. Singleton, carried out said scheme and artifice and made said false and fraudulent representation and pretenses by himself and by and through his agents, employees and associates.
“The defendant, John W. Singleton, enticed his numerous victims, including each and every one of the persons named in the indictment, by means of the scheme and artifice above described, and by the use of fraudulent representations and pretenses, above set forth, to turn over to the said defendant, John W. Singleton, their moneys in cash, or as the proceeds of official bank checks, or certified checks or other bank checks, all such payments being made in accordance with the directions and instructions of the said defendant, John W. Singleton.
“The defendant, John W. Singleton, obtained possession of the moneys of the persons listed in the various counts in the indictment, inducing their consent by false and fraudulent representations and pretenses, in the amounts and at the approximate times as follows:
“Name: Amount: Approximate Time:
Charles L. Bradley 2125.00 July 8, 1947
Anton Chandek 1841.00 August 9, 1947
Martin Halko 2285.00 July 1, 1947
John Krowiak 2285.00 July 29, 1947
Joseph Potochnik 1770.00 July 24, 1947
J ames Kaatky 2300.00 July 10, 1947
Ralph Everstine 2175.00 June 23, 1947
Rudolph J. Kuk 2250.00 August 25, 1947
Joseph Kostyk 1500.00 August 27, 1947
Evelyn D. Schweitz 2450.00 September 3, 1947
Francis Kavanaugh 1650.00 June 21, 1947
Fred Goforth 1864.00 July 29, 1947
Edward Tysl 1975.00 July 1, 1947
Harry A. Overman 2285.00 Sept. 26, 1947
Rose Boehm 2220.00 June 26, 1947
“Frank T. Cullitan, prosecuting attorney of Cuyahoga county, Ohio.”

On March 20, 1948, the defendant filed a demurrer. On March 31, 1948, the court overruled the demurrer.

On April 2, 1948, the defendant, entered his plea of not guilty and on April 6, 1948, the trial proceeded.

Because of the absence of Rose Boehm from the state at the time of trial, count No. 15, oh motion of the prosecuting attorney, was withdrawn from the indictment.

On April 23, 1948, the jury found the defendant guilty of larceny by trick on each of the 14 counts as charged in the indictment.

On April 24, 1948, a motion for new trial was filed.

On May 5, 1948, the court, on hearing of the motion for a new trial, overruled the same and rendered judgment on the verdict of the jury, sentencing the defendant to the Ohio State Penitentiary.

That is the judgment from which this appeal is taken.

The defendant, appellant herein, assigns error in the following particulars:

1. The court erred in admitting the testimony of the defendant taken in Bankruptcy Court.

2. There was no proof of any larceny by trick.

3. Error in the general charge, and in refusing requests io charge of the defendant.

4. The court erred in the admission of evidence.

5. Irregularity in the proceedings of the court.

6. Other errors of law.

7. The judgment is not sustained by sufficient evidence and is contrary to law.

These assignments of error will be considered in the order mentioned, and such of the evidence in the case as is necessary to a consideration of any of the assignments will be discussed under that assignment.

1. As appears from the bill of exceptions, the state offered and the court admitted the testimony of Henry Toll, a court reporter, of the testimony given by the defendant, John W. Singleton, at a hearing before Carl D. Friebolin, a referee in bankruptcy, on Wednesday, December 3, 1947, at 9:30 á. m., and at an adjournment thereof to Friday, December 5, 1947.

Further testimony in the case by Henry Toll and Ida L. Drake, a clerk of the Bankruptcy Court, discloses that a petition in involuntary bankruptcy had been filed during the month of November 1947 in the District Court of the United States for the Northern District of Ohio, Eastern Division, against the defendant, John W. Singleton, doing business as Louis Auto Sales & Service Company and doing business as J. W. Singleton Motors Company, by three of his creditors and that he was adjudged a bankrupt, under the above name and style,' during the month of December 1947.

It further appears that the hearing was held prior to an adjudication of bankruptcy. It was at this hearing that Singleton consented to be adjudged a bankrupt.

It. further appears that the first meeting of creditors of the bankrupt was not held until January 13, 1948.

The witness was later called for cross-examination by the defendant and the defendant cross-examined him as to the testimony given by John W. Singleton at the first meeting of creditors held on January 13, 1948; and after the defendant had examined the witness as to such testimony the state was permitted to examine the witness with reference to further testimony given by John W. Singleton at the meeting of January 13th,

Under the first assignment of error the defendant contends the court erred in admitting evidence of Henry Toll as to the testimony of the defendant, John W. Singleton, at the hearing before the referee on December 3, 1947, and also erred in admitting the testimony of Henry Toll on examination by the state, as to the testimony of defendant, Singleton, at the first meeting of the creditors on January 13, 1948.

As supporting this contention he relies on the following provision of the Bankruptcy Act as follows:

“(a) The bankrupt shall * * * (10) at the first meeting of his creditors, at the hearing upon objections, if any, to his discharge and at such other times as the court shall order, submit to an examination concerning the conducting of his business, the cause of his bankruptcy, his dealings with his creditors and other persons, the amount, kind, and whereabouts of his property, and, in addition, all matters which may affect the administration and settlement of his estate or the granting of his discharge; but no testimony given by him shall be offered in evidence against him in any criminal proceeding, except such testimony as may be given by him in the hearing upon objections to his discharge * * *’ Title 11, Section 25, U. S. Code.

Under the provisions of the Bankruptcy Act a person is not a bankrupt within the meaning of the act until he has been adjudicated bankrupt.

By the terms of the above-quoted provisions it is only the testimony of the bankrupt that shall not be offered in evidence against him in any criminal proceeding, so at the hearing of December 3, 1947, and its adjournment to December 5, 1947, the testimony of the defendant, Singleton, did not come within the purview' or protection of such provisions. He stood at that time as an ordinary litigant in an adverse proceeding in court, and his testimony at the hearing on those dates was properly offered in evidence against him.

By examining Henry Toll as to the testimony of the defendant Singleton, at the first creditors’ meeting on January 13, 1948, the defendant waived the immunity afforded him by the above-quoted provision of the Bankruptcy Act.

As the defendant elicited part of the testimony of the defendant at the meeting of creditors on January 13, 1948, on his cross-examination, the state had the right to offer the entire testimony or any part thereof in evidence. 1 Wigmore on Evidence (2 Ed.), 189; 1 Wharton’s Criminal Evidence (11 Ed.), 613; 5 Jones’ Commentaries on Evidence (2 Ed.), 4589 et seq.; State v. Hubbard, 126 Kan., 129, 266 P., 939, 58 A. L. R., 327; Morey v. State, 72 Fla., 45, 72 So., 490.

This assignment is, therefore, without merit.

In his second assignment of error the defendant assigns error in that there was no proof of any larceny by trick. In support of this assignment he makes four genera] contentions which may be summarized as follows:

(a) In order to constitute larceny by trick a false pretense must relate “to a past event or an existing fact and in this case there is no proof of any false pretense relating to a past event or an existing fact.

(b) As the testimony of the various persons named in the various counts of the indictment, and of other witnesses who purchased automobiles from the defendant, shows that each of them, knowing that the automobiles purchased by them were not then in stock and would not be delivered to them until a fixed date in the future, upon the representations of the salesmen employed by the defendant that if such automobiles were not delivered to them by the time fixed for delivery, the amount of the purchase price thereof paid by them would be returned to them upon demand and that interest-bearing notes of the seller for the amount of the purchase price would be given by the seller to assure the performance of the agreement on the part of the seller, purchased such automobiles and paid the purchase price thereof by cash or certified check with the understanding and agreement that the automobiles were not to be delivered until a fixed date in the future, and that if they were not delivered by such time the amount of the purchase price thereof was to be returned to them upon demand, and accepted interest-bearing notes in the principal sum of the purchase price paid by them, payable on the future date fixed for delivery of such automobiles, to assure the performance of such understanding and agreement on the part of the seller, they must be considered in law as having voluntarily parted with the possession and title to the purchase price, in the same manner as one loaning money, when making a loan, parts with the possession and title to his money and not as being induced thereto by false or fraudulent representation, pretense, token or writing.

(c) The evidence shows that the defendant did not personally make the sales of the automobiles in question, but that such sales were made by salesmen employed by him and such representations as were made in connection with such sales were made by such salesmen in good faith and without intent to defraud, and consequently there is a failure of proof that the defendant made the false or fraudulent representations he is charged with making.

(d) Failure of proof in other particulars.

2. The indictment is based on the provisions of Section 12447-1, General Code. The language of this section is as follows:

Whoever obtains possession of, or title to, anything of value with the consent of the person from whom he obtained it, provided he induced such consent by a false or fraudulent representation, pretense, token, or writing is guilty of larceny by trick, and, if the value of the thing obtained by such false or fraudulent representation, pretense, token, or writing is thirty-five dollars or more, shall be imprisoned in the penitentiary not less than one year nor more than seven years, or, if the value is less than that sum, be fined not more than two hundred dollars, or imprisoned] not more than thirty days, or both. ’ ’

This section appears in 120 Ohio Laws, 444. It also appears in the 1948 cumulative pocket supplement to Volume 10 of Page’s Ohio General Code Annotated. It became effective September 16, 1943. It is a new statute prescribing a new offense.

In this state there are no crimes save those prescribed by statute.

In the supplement to Page’s Code, in which the statute appears, no comparative legislation of other states is noted, and we have been unable to find any, so the statute is apparently not patterned after legislation of any other state. ’

Under the provisions of Section 12447, General Code, prescribing the offense of larceny, to constitute larceny in a case where the owner voluntarily parts with the possession of his property, two other conditions are essential.

1. The owner at the time of parting with the possession, must expect and intend that the thing delivered will be returned to him or disposed of under his direction for his benefit.

2. The person taking the possession must at the time intend to deprive the owner of his property in the thing delivered.

But where the owner intends to transfer, not the possession merely, but also the title to the property, although induced thereto by fraud and fraudulent pretenses of the taker, the taking and carrying away do not constitute a larceny. In such case the title vests in the fraudulent taker and he cannot be convicted of the crime of larceny for the simple reason that, at the time of the transaction, he did not take and carry away the goods of another person but the goods of himself. Kellogg v. State, 26 Ohio St., 15.

Under the provisions of Section 13104, General Code,

I prescribing the offense of obtaining property by false pretenses, such false pretenses must relate to a past event or an existing fact. Any representation or assurance in relation to a future transaction is not included. Dillingham v. State, 5 Ohio St., 280; Winnett v. State, 18 C. C., 515, 10 C. D., 245, judgment affirmed, State v. Winnett, 62 Ohio St., 650, 58 N. E., 1102.

As is commonly known, many swindles are perpetrated by inducing the owner to part with the possession or title to his property by means of false or fraudulent representations as to future events or transactions which, as shown above, are not punishable under either the larceny statute or the statute relating to obtaining property by false pretenses, and it is apparent that the Legislature enacted Section 12447-1, General Code, above mentioned, for the purpose of remedying the deficiencies and inadequacies of the statutes in this respect and making such swindles [penal offenses.

This new statute differs from the larceny statute in that if either the possession or the title to property is obtained with the consent of the person from whom it is obtained, it is subject to its provisions, and it differs from the statute prescribing the offense of obtaining property by false pretenses in that the falseprotense statute prescribes an offense of obtaining property “by false pretense and with intent to deifraud” while the new statute prescribes an offense of obtaining property with the consent of the person from whom it is obtained, provided such consent is induced “by a false or fraudulent representation, pretense, token, or writing.”

As used in Section 12447-1, General Code, token means a document or sign of the existence of a fact, and a false token is a false document or sign of the existence of a fact, in general use for the purpose of a fraud.

The devising or intention to devise a scheme or artifice to defraud, or for obtaining money or property by means of a false or fraudulent representation, pretense, token, or writing, by the actor, is necessarily implied in this section as a condition precedent to the making by the actor of any false or fraudulent representation, pretense, token or writing.

Under the provisions of the section, any representation, pretense, token or writing, made by the actor in furtherance of a scheme or artifice to defraud, is a fraudulent representation, pretense, token or writing, and may, depending upon the specific character thereof, be both false and fraudulent, and a fraudulent representation, pretense, token or writing may relate to future facts, events and transactions, as well as to existing facts and past events, and may be promissory in character.

The fraudulent conduct proscribed by Section 12447-1, General Code, except that it does not involve the use of the mails in its execution, is therefore similar to the fraudulent conduct proscribed by Section 215 of the United States Criminal Code (Section 338, Title 18, U. S. Code), the pertinent part of which reads as follows:

“Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises * * * shall, for the purpose of executing such scheme or artifice or attempting so to do, place, or cause to be placed, any letter * * * whether addressed to any person residing within or outside the United States, in any post office * * * to be sent or delivered by the post office establishment of the United States * * * shall be fined not more than $1,000, or imprisoned not more than five years, or both.”

While in Section 12447-1, General Code, the making of false or fraudulent tokens or writings is included in the classes of fraudulent conduct which are not specifically included in the classes of fraudulent conduct proscribed in Section 215 of the United States Criminal Code, the promotion of which through the use of the mails is thereby penalized; and although Section 215 of the United States Criminal Code includes false or fraudulent promises in the classes of fraudulent conduct proscribed by it, which are not included in the classes of fraudulent conduct proscribed by Section 12447-1, General Code, if is obvious that the fraudulent conduct which is proscribed in each of such sections is of the same general character, and that the decisions applicable to the interpretation and construction of Section 215 of the United States Criminal Code are, therefore, applicable to the interpretation and construction of Section 12447-1, General Code.

Illustrative of those decisions are the following:

In order to establish a scheme to “defraud” within the scope of Section 215, United States Criminal Code, it is not necessary that there should be an actual misrepresentation of an existing fact, or that the elements necessary to constitute common-law action of “deceit,” exist, since this section prohibits any scheme or artifice to defraud. United States v. McKay (D. C. Mich., 1942), 45 F. Supp., 1007.

The crime consists in the making of those promises which the parties never intended to perform, or false representations which they never intended to make good. Barnard v. United States (C. C. A. 9), 16 F. (2d), 451.

Fraud is established by showing that defendants knew he would not perform a promissory representation. Knickerbocker Merchandising Co., Inc., v. United States (C. C. A. 2), 13 F. (2d), 544.

False representations as to intended use of funds collected held to establish a fraudulent scheme. United States v. Rosenfeld (C. C. A. 2), 57 F. (2d), 74.

To use the mails in order to carry out a scheme of getting money by the making of promises or agreements which, whether known to be impossible of performance or not, there is no intention to perform, is a forbidden use of the facilities of the post office department. Durland v. United States, 161 U. S., 306, 313, 40 L. Ed., 709, 711, 16 S. Ct., 508.

A scheme or artifice to defraud, within the meaning of Section 215, United States Criminal Code, respecting unlawful use of the mails, may be devised through mere representations and promises as to the future, although no representation as to an existing fact is made, where there is an attempt thereby to entrap the unwary and to secure money from them on the faith of the scheme which is glittering and attractive in form, yet unreal and deceptive in fact and known to the person devising it to be such. Durland v. United States, supra.

Evidence supported a conviction of using mails to defraud in the sale of rabbits and guinea pigs at $5 a pair, under promise to buy all progeny at $2.50 a pair, with intent not to keep the promise. Defendant contended that he acted in good faith, but it was impossible to fulfill the promises. “What was in his mind could, of course, only be judged by how he dealt with his customers, and what he did with the incoming flood of money.” Rowan v. United States (C. C. A. 7), 277 F., 777, 25 A. L. R., 876.

(a) Considered in the light of these decisions, the gravamen of the offense proscribed in Section 12447-1, General Code, and charged in the indictment and correctly charged by' the trial court in the instant case is:

That the possession or title to the property was obtained by the person charged, with the consent of the person from whom it is charged it was obtained, and that such consent was induced by false or fraudulent representation, pretense, token or writing; that the false or fraudulent representation, pretense, token or writing, was made with the specific intention of procuring the consent of the person from whom the property was obtained, to part with the possession or title; and that the false or fraudulent representation, pretense, token or writing, was such as to be a decisive influence on the mind of the party consenting, so that without its weight he would not have consented to part with his property.

That there was an intent at the time of obtaining possession or title to the property, on the part of the person charged, to deprive the person from whom it was obtained, of his property, and permanently to appropriate it to his own use. That such false and fraudulent representation, pretense, token, or writing, consisted in making a representation, pretense, token, or writing, which the person charged, knew to be false or never intended to carry out, whichever the case may be, with intent to induce the person from whom the property was obtained, to give up possession and title to the property.

It consists of deception or artifice deliberately perpetrated upon the person from whom the possession or title to the property is obtained, for the purpose of obtaining the possession or title to the property for the defendant’s own use.

As appears from the foregoing discussion, under the provisions of Section 12447-1, General Code, irrespective of whether a false pretense must relate to a past event or an existing fact, a fraudulent representation, pretense, token, or writing, does not have to relate to past events or existing facts but may relate to future facts, events and transactions, so that a conviction of the offense proscribed by such section and charged in the indictment in this case, may be had regardless of whether there is proof of a false pretense relating to a past event or to an existing fact.

(h) There is evidence tending to prove beyond a reasonable doubt that the giving of the notes to purchasers of automobiles as hereinbefore mentioned, was a mere incident in the scheme to defraud devised by the defendant. As the giving of the notes was a mere incident in a fraudulent scheme it does not prevent the act of the defendant from being larceny by trick. Young v. State, 44 Ohio App., 1, 184 N. E., 24 (Motion for leave to file petition in error overruled June 15, 1932); Stecher v. Wisconsin, 202 Wis., 25, 231 N. W., 168, 70 A. L. R., 203, and cases cited in annotations to this case at 70 A. L. R., 208.

(c) While the defendant did not personally make the representations in question, and such representations were made in apparent good faith without intent to defraud, by the salesmen employed by the defendant, there is evidence tending to prove beyond a reasonable doubt that the representations made by the salesmen were made at the express direction of the defendant and on his behalf; that the defendant had approximately only $1,000 in capital when he first engaged in the business of buying and selling automobiles, and such business continued for approximately eight months; that in carrying on and conducting such business, the defendant, out of the proceeds of automobiles sold through such representations, paid for such automobiles as were delivered by him, prices greatly in excess of the amounts for which he sold them; that out of such proceeds he also paid to himself and some of his employees, excessive salaries; that he made, to some of his employees and other persons, gifts of expensive automobiles and other expensive merchandise; that he converted large portions of such proceeds to his own use for purposes other than those connected with his ostensible business of buying, selling and servicing automobiles; that the defendant kept what purported to be books of such business which did not reflect the prices paid by him for such automobiles as he purchased and delivered; that during the period he was engaged in such business, which, as above stated, was approximately eight months, he failed to deliver automobiles for which he had received approximately $1,000,000 in advance payment; and that upon being adjudicated a bankrupt following the close of his business, was found to have assets considerably less than $100,000.

From that evidence the jury was warranted in finding beyond a reasonable doubt that the representations made by the various salesmen employed by the defendant were made by the defendant, that they were made by him with intent, at the time, of obtaining possession and title to the property of the persons mentioned in the various counts of the indictment, from them respectively, with their respective consents and to appropriate it to his own use, and that such representations were fraudulent in that the defendant never intended to' carry them out.

(d) The evidence in this case is so voluminous that it is impossible to discuss it in detail, so that in considering the defendant’s contention of failure of proof in other respects we deem it sufficient to say that, interpreting and construing Section 12447-1, General Code, as we have interpreted and construed it, and as the trial court in its charge correctly interpreted and construed it, there is competent, credible and substantia] evidence of such convincing character tending to prove each and every essential element of the offense charged in the indictment (as outlined in the amended bill of particulars filed herein) that the jury was warranted in finding the defendant guilty beyond a reasonable doubt, of the offense charged in the indictment.

For the reasons mentioned, this second assignment of error is without merit.

3. The third assignment of error relates to claimed errors in the general charge and the refusal of the trial court to give special instructions to the jury, requested by the defendant after the argument had been completed.

Considering the general charge as a whole, we find no error in it prejudicial to the defendant.

Such portions of the special instructions requested by the defendant as were correct statements of law applicable to the issues in the case were included in the general charge; and such of the requested instructions as were not correct were properly refused by the court.

This assignment of error is, therefore, without merit.

4. The fourth assignment of error is that the court erred in the admission of evidence.

We have already considered the first assignment of error, in which it is charged that the court erred in the admission of the testimony of the official stenographer as to the testimony of the defendant taken in Bankruptcy Court, and have held such testimony was properly admitted.

The defendant, under this assignment, makes the further contention that the court erred in the admission of the testimony of persons other than the persons named in the various counts of the indictment, as to transactions with the defendant which were of a similar nature to the transactions of the persons named in 'such counts, with the defendant.

Such testimony was admissible to show the nature and character of the operations of the defendant, and was also admissible under the provisions of Section 12444-19, General Code, the “similar offenses” or “like act” statute.

Error is also claimed in the admission of the testimony of Detroit automobile dealers showing the prices at which they sold automobiles to the defendant to be greatly in excess of the prices for which the defendant sold them, and the testimony of various persons showing how the defendant squandered the money of persons who had paid the purchase price of automobiles in advance with their orders and who never received such automobiles.

This evidence was admissible to show the intent of the defendant to defraud, as charged in the indictment, and the court properly admitted it.

This assignment of error is also without merit.

5. The fifth assignment of error charges irregularity in proceedings of the court in the following particulars :

(a) In not permitting Ida L. Drake, clerk of the Bankruptcy Court, to answer questions pertaining to the bankruptcy of one Joseph Laronge and the Van Sweringens.

(b) The sustaining of an objection of the state to the argument of defense counsel, on the ground that defense counsel had incorrectly stated the law.

(c) In the final argument of the prosecuting attorney in which he made a reference to “Ponzi” in characterizing the fraud perpetrated by the defendant.

The court properly refused to admit testimony as to the bankruptcies of Joseph Laronge and the Yan Sweringens as such testimony was irrelevant to the issues in this case.

In his argument, counsel for the defendant made the following statement:

“I do want you to be duly impressed with the facts here, and if you are duly impressed with the facts it will appear to you that there was no misrepresentation made here by any of these salesmen as to a past or existing fact. They were wrong about the facts.”

The state objected to that line of argument on th« ground that it was not a correct statement of the law, and the court then suggested to counsel to be a little more careful on quoting the law.

The argument made by counsel for the defendant had a tendency to lead the jury to believe that it was limited, in its consideration, to misrepresentation of past or existing facts, while under the law as hereinbefore noted, its consideration was not so limited.

The suggestion made by the court to counsel was, therefore, proper.

Counsel for the defense, in his argument, had referred to “Ponzi” so that the use of this word by the prosecuting attorney in his answering argument was proper rebuttal. Furthermore, the use of the name “Ponzi” was an apt characterization of a type of swindle with which the defendant was charged.

This assignment of error is also without merit.

6.' The sixth assignment of error is entitled “For other errors of law,” but the defendant specifies errors only in overruling his motion for a new trial and other errors which appear on the face of the record.

The grounds of the motion for a new trial are all incorporated in defendant’s assignments of error and have been heretofore discussed and disposed of adversely to the defendant.

The defendant does not argue any error which appears on the face of the record and the court under its statutory prerogative will not consider such alleged errors.

7. For a seventh assignment of error the defendant contends that the judgment is not sustained by sufficient evidence and is contrary to law.

We have already determined that the judgment is sustained by evidence tending to prove the guilt of defendant beyond a reasonable doubt. Our previous holdings show that the judgment is not contrary to law but so that there may be no question as to the effect of our previous holding we now specifically hold that the judgment is not contrary to law.

Finding no prejudicial error in any of the particulars specified and argued in defendant’s brief, 'the judgment of Common Pleas Court is affirmed at costs of defendant and the cause remanded for execution.

Judgment affirmed.

Doyle, P. J., and Middleton, J., concur.

Doyle, P. J., of the Ninth Appellate District, and Guernsey and Middleton, JJ., of the Third Appellate District, sitting by designation in the Eighth Appellate District.


author: Wiseman, P. J.

text:
    Myers, Treas., Appellee, v. Wisteria Development Co. et al., Appellants.
    (No. 1978
    Decided November 29, 1948.)

      Mr. Matthias Ü. Heck, prosecuting attorney, for appellee.

      Mr. Hugh 8. Jenkins, attorney general, Mr. Darowne B. Tate and Mr. Morris M. Bokolsky, for appellant state of Ohio.

      Messrs. Landis, Ferguson, Bieser <& Greer, for Gem City Building & Loan Association.
   Wiseman, P. J.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Montgomery county. The trial court found that the mortgage lien acquired by the Gem City Building & Loan Association of Dayton, Ohio, should have priority over the lien of the state of Ohio for franchise tax levied against the Wisteria Development Company.

The appellant, state of Ohio, claims the court erred: In finding that the mortgage lien was prior to the lien of the state of Ohio for franchise taxes, and in failing to distribute a portion of the proceeds of the sale to the appellant in satisfaction of its lien.

The sole question presented is whether the mortgage lien acquired by the Gem City Building & Loan Association on April 6, 1929, is entitled to priority over the lien of the state of Ohio for franchise tax delinquencies which first occurred in 1932. The determination of the question presented turns upon the interpretation of Section 5506, General Code, which provides:

“Annually on the day fixed for the payment of any excise or franchise 'tax required to be paid by law, such tax, together with any penalties subsequently accruing thereon, shall become a lien on all property in this state of a public utility or corporation, whether such property is employed by the public utility or corporation in the prosecution of its business or is in the hands of an assignee, trustee or receiver for the benefit of the creditors and stockholders thereof. Such lien shall continue until such taxes, together with any penalties subsequently accruing thereon, are paid.'' (Emphasis ours.)

That section does not expressly give priority to the franchise tax lien. The appellant contends that the last sentence in the section which provides for the indefinite continuation of the lien impliedly confers a priority over pre-existing mortgage liens. The section must be construed strictly against the taxing authority. 38 Ohio Jurisprudence, 725, Section 15.

In George D. Harter Bank v. McKinley Lumber Co., 136 Ohio St., 465, 26 N. E. (2d), 587, a dictum is found on page 468 which states: “By statute it has created tax liens on certain kinds and types of property, and has given them precedence over prior liens and encumbrances. The action taken as to real estate taxes and corporate franchise taxes is illustrative. Sections 5713 and 5506, General Code; 38 Ohio Jurisprudence, 1078, Section 276.” The court evidently referred to Section 5506, General Code, as it formerly existed. That section as originally enacted in 1911 (102 Ohio Laws, 224) provided that “The fees, taxes and penalties, required to be paid by this act, shall be the first and best lien on all property of the public utility or corporation,” etc. This provision was retained when the section was amended in 1927 (112 Ohio Laws, 410). The section as amended also contained a provision similar to the provision under construction, to wit: “Such lien shall continue until such fees, taxes and penalties are paid.” In 1929 (113 Ohio Laws, 705) this section was again amended and the provision that such tax lien “shall be the first and best lien” was-omitted. In the sentence providing for the indefinite-continuation of the lien were inserted the words “together with any penalties subsequently accruing thereon.” This section as amended in 1929, also, contained a provision relative to the filing in the office of the county recorder, a notice of such lien and provided that when filed such lien should not be valid against any mortgagee, pledgee, purchaser or judgment creditor whose rights attached prior to the time such notice was filed.. The section as last amended, and as it presently exists, in the form above quoted, became effective on February 23, 1935 (115 Ohio Laws, pt. 2, 269). As last, amended, such section does not contain a provision making the lien the “first and best lien.” The provision for filing a notice of the lien in the office of the county recorder was also omitted. The provision for the continuation of the lien was retained.

The rule of statutory construction applicable to the question presented is aptly stated in 38 Ohio Jurisprudence, 725, Section 15:

“If there is any doubt as to the meaning of a tax statute, the construction must be strict, and the doubt must be resolved in favor of the citizen upon whom or property upon which the burden is sought to be imposed, and against the taxing power. Language employed in a taxation statute should not be extended by implication beyond its clear import, or so enlarged in its operation as to embrace subjects of taxation not specifically named. Courts will not by construction interpolate words into the statute to extend its terms.”

In Clark Restaurant Co. v. Evatt, Tax Commr., 146 Ohio St., 86, 64 N. E. (2d), 113, the court on page 91 stated:

“If there be any doubt as to the meaning of these statutory provisions, or if any judicial construction be required, then a well established rule would be applicable, i. e., in the construction and application of taxing statutes their provisions cannot be extended beyond the clear import of the language used; nor can their operation be so enlarged as to embrace subjects not specifically enumerated. A strict construction is required, and any doubt must be resolved in favor of the taxpayer and against the taxing authorities. Watson, Jr., Exr., v. Tax Commission, 135 Ohio St., 377, 21 N. E. (2d), 126, and authorities there cited.”

See, also, McNally v. Evatt, Tax Commr., 146 Ohio St., 443, 66 N. E. (2d), 633.

The legislative history of Section 5506, General Code, does not disclose any legislative intent, in the most recent enactment of this section, to extend to the state a right of priority over pre-existing liens. The provision for an indefinite continuation of the lien is not sufficiently definite in its terms and purpose to provide for such priority.

In our judgment the principle that priority in time determines priority of right is applicable. The judgment of the lower court was correct and is hereby affirmed.

Judgment affirmed.

Mrr.T.m and Hornbeck, JJ., concur.


text:
    Mecklenborg et al., Appellants, v. Niehaus et al., Appellees.
    (No. 7026
    Decided December 20, 1948.)

      Messrs. Cowell S Fletcher and Mr. Richard B. Baker, for appellants.

      Messrs. Nieberding é Nieberding, for appellees.
   Matthews, P. J.

This is an appeal from a judgment rendered for the defendants in an action in which the plaintiffs sought to recover a commission on the sale of real estate owned by defendants. The judgment was rendered on a general verdict for the defendants.

There was no dispute that on June 18, 1947, the defendants employed A1 Koch, one of the plaintiffs, as their exclusive agent to sell their real estate for $16,-800, and agreed to pay him a commission of 5% on the amount for which the property might be sold if he procured a purchaser, excepting, however, from the generality of the exclusive agency given to Koch a reservation to themselves of the right to sell the property at any time during the “length of the contract. ’ ’

On the same day that the contract was made with Koch the defendants arranged to have an advertisement inserted in the Cincinnati Enquirer the following Sunday of their desire to sell the property.

Within less than a week thereafter the plaintiff Mecklenborg telephoned the defendants and within a week appeared at the defendants’ home with his two nephews to inspect the property. As a result of that and later inspections and negotiations with the defendants the nephews bought the property for $15,000. The contract of sale was effected and dated July 1, 1947.

It was admitted that Mecklenborg was a licensed real estate broker at the time, but his action is based on the assertion that at the time he was acting for and on behalf of' Koch to whom the authority to sell had been given. It is not claimed that he had any right to a commission as an independent broker by reason of any express or implied agreement with the defendants.

Mecklenborg testified that he told the defendants at the time that he had obtained his information from Koch that their house was for sale and that he was acting in co-operation with him.

One of the purchasers who was called as a witness by the plaintiffs testified that Mecklenborg told him that he thought the property could be bought for $15,000. Mecklenborg thereafter took the stand in rebuttal, but did not deny this testimony. The defendant Robert Niehaus had told Koch that $15,000 was the minimnm net price.

The defendants testified that Mecklenborg did not say anything about Koch or anything that would lead them to think that a commission was expected and that they supposed his interest in his nephews who were the purchasers was the reason he was there and that they supposed he had learned from their notice in the newspaper of the preceding Sunday that their property was for sale.

Many circumstances appear in the evidence corroborating these divergent histories of the transaction.

In view of this situation presented by the evidence, the tria] judge reached the conclusion that the liability of the defendants turned on whether Mecklenborg was acting for and on behalf of Koch at the time to their knowledge. Accordingly, in both special charges and the general charge, the court set forth this test of liability. In the genera] charge it is stated:

“Have the plaintiffs proved by a preponderance of the evidence that Mr. Mecklenborg was known to the. defendants, or either of them, as the subagent or associate of A1 Koch with whom they had a contract, and was so acting at the time when he accompanied the Schutte boys to view the defendant’s property, and before the sale to the Schuttes was closed.”

The plaintiffs presented the contrasting view in special charges which the court refused to give.

The duty of an agent to make full disclosure to his principal of all materia] facts relevant to his agency is fundamental to the fiduciary relation of principal and agent. It is so formulated in Section 381 of 2 Restatement of the Law of Agency, as follows:

“Unless otherwise agreed, an agent is subject to a duty to use reasonable efforts to give his principal information relevant to affairs entrusted to him which, as the agent has notice, the principal would desire to have and which can be communicated without violating a superior duty to a third person. ’ ’

This same duty is stated in 2 American Jurisprudence, 217, thus:

“Tn the exercise of good faith and diligence, it is the duty of the agent to use reasonable efforts to keep his principal informed of all facts which may come to the agent’s knowledge concerning the matters that have been entrusted to him which affect the principal’s business, his rights, or his interests, or which he would desire to know, and which can be communicated without violating a superior duty owing to a third person.”

Of course, whether the failure to disclose will result in a cause of action or defense will depend on whether the principal has been damaged by the nondisclosure. In the case at bar there can be no question on this point. Koch was authorized in writing to sell for $16,300. The only deviation from this price Avas disclosed by the uncontradieted testimony of defendant Robert. Niehaus that he told Koch that “the very loAvest I would take would be $15,000 net,” and he explained that he meant net to him.

It is in the light of this testimony and the fact that the plaintiff Mecklenborg was present, charged with knowledge that the defendants were agreeing to sell at a price that they had told Koch was their minimum net price, that this case must be determined.

There is no doubt about the general rule that a real estate broker is entitled to a commission on a sale to a buyer procured by him even though the owner sells at a price lower than that listed with the broker, regardless of whether the owner knows at the time that the broker had interested the buyer in the property and was the procuring cause, although this general rule is not universally followed. The facts of the Ohio cases relied on by the plaintiffs called for the application of that general rule. But there have appeared in the cases, even in those jurisdictions following the general rule, a variety of circumstances that prevent the application of the general rule. The cases on the subject are collected in an elaborate annotation in 142 A. L. R., 270, to the case of Lasoya Oil Co. v. Jarvis, 191 Okla., 213, 127 P. (2d), 142. The first two paragraphs of the syllabus of that case, as reported in A. L. R, are:

“Where an owner of property has promised a broker a commission to consummate a sale of the property he should ordinarily * * * know that, the aippearance of (a) customer may have been-caused by the broker, and in order to avoid liability for the payment of a commission, he should make inquiry of the broker, but Where the broker’s contract with the owner and his conduct has been such that the owner has reason to believe that he has not caused the appearance of the customer, no such inquiry need be made.
“Where the conduct of a real-estate broker has been such as to warrant the principal in assuming that the purchaser has not been procured by the broker’s efforts, the principal will not be liable for the commission on a sale at a reduced price, even though the broker was in fact, responsible for interesting the purchaser in the property.”

We are of the opinion that the special circumstances of this case take it out of the general rule. On this review, we must assume that the jury found that Mecklenborg failed to disclose to the defendants his relation to Koch. He knew of that relation and he had ho reason to believe that the defendants had any knowledge on the subject. He witnessed the defendants negotiating with the prospective purchasers to whom they finally sold the property for the price which Koch knew was the defendants’ minimum net price, and as Mecklenborg was, according to his testimony standing in the relation of Koch’s subagent he must, be charged with that knowledge. Yet he said nothing to the defendants about his relation to Koch so that they would know that a commission would have to be deducted from the $15,000 to arrive at their net selling price.

It seems to us it presents the same, situation as though Koch had appeared in a disguise and witnessed the defendants negotiating on terms indicating that they had not pierced his disguise.

It seems to the court that the circumstances called for disclosure by the agent. He was present with full opportunity to speak, but remained silent. By remaining silent, he violated his duty to his principal. To allow a recovery in this action would be permitting the plaintiffs to take advantage of their own violation of duty.

In Schaefer v. Winkler, 82 Ohio App., 435, 81 N. E. (2d), 544, the facts were that the broker having nonexclusive authority to sell for $29,300 introduced one Maksialler to the owner. Later, the owner sold the property to a third person for $28,300. There was evidence tending to prove that the ostensible buyer was acting for Makstaller, but there was no evidence that the owner had any knowledge of that fact at the time. We held that as the broker had not produced a purchaser willing to pay $29,300, and as the owner had sold at a reduced price to a buyer other than Makstaller, the broker was not entitled to a commission notwithstanding the fact that, unknown to the owner, the ostensible buyer was in fact the secret agent of Makstaller. It will be observed that the secrecy here was not on the part of the broker, as in the case at bar, but consisted in the buyer concealing his identity. There are other distinguishing features, but each case does illustrate the effect of lack of knowledge of the relation of the broker to the transaction upon the liability of the buyer to pay a commission.

We are of the opinion that the trial court did not err in submitting the issue of disclosure to the jury.

Finding no error in the record, prejudicial to the appellants, the judgment is affirmed.

Judgment affirmed.

Matthews, P. J., Ross and Hildebrant, JJ., concur in the syllabus, opinion and judgment.