author: Jones (Oliver B.), J. Gorman, J.,

text:
    TENANT IN POSSESSION UNDER. A WRITTEN LEASE.
    Court of Appeals for Hamilton County.
    William S. Walker v. Herman Bumiller.

    Decided, May 15, 1916.

      Landlord and Tenant — 'Written Lease for One Year — Tenant Holding Over Becomes Bound for Another Year — Parol Oontract for New Lease from Month to Month Within the Statute of Frauds. — Cor-bin v. Hafer, Reversed by the Supreme Court Without Opinion, Not Followed.

    1. When a tenant under a written lease for one year holds over after the expiration of his lease, he impliedly holds as a tenant for another year, at the option of the landlord, under the same terms and conditions as in the original lease.
    2. A parol contract for a new lease from month to month, between landlord and tenant in possession under an existing lease by the year, is within the statute of frauds unless the possession and holding after the expiration of the first lease is distinctly referable to the new contract and not to a continuance under the original lease.

      Edward H. Brink and Chas. B. Wilby, for plaintiff in error.

      Dempsey & Nieberding, contra.

       Affirming the parallel case of Long v. Kahn, 18 N.P. (N.S.).

   Jones (Oliver B.), J.

The question to be determined in this case is the validity of a parol agreement between a landlord and tenant made while in possession under a written lease for one year, which attempts to create a new lease from month to month after the expiration of the original term.

It is admitted that the defendant held over, but he alleges that while in possession under his written lease for a year, he by an oral arrangement with plaintiff agreed to continue after the termination of that lease to hold as a tenant from month to month at the same rental. Such, an agreement is within the statute of frauds (Sections 8620 and 8621, General Code). It is a contract for an interest in or concerning lands and must be in writing to be valid.

A familiar exception to the rule, that an oral letting of land is invalid under the statute of frauds, is where the agreement is carried out by the delivery of possession thereunder, thus taking it out of the statute by part performance.

But it has been clearly held that a parol agreement to take effect at once or in the future, for a lease between a landlord and a tenant in possession under a previous letting is within the statute of frauds and can not be enforced, and evidence will not be admitted in support of such a contract.

The earliest ease in Ohio in which the Supreme Court has spoken on the subject is Armstrong v. Kattenhorn, 11 Ohio, 265, a leading ease frequently cited with approval, in which the syllabus is as follows:

“A parol contract for a lease between landlord and tenant in possession, under a prior lease, is within the statute of frauds; unless possession be held solely under, and in performance of the parol contract, the terms of holding, clearly indicating the possession to be under the subsequent parol lease. ’ ’

And in the opinion, the court say:

“But, if possession be relied upon, it must be clearly referable to the contract, and be delivered and held in performance of it.
“Possession must give the contract life, and if they can possibly be separated, the parol agreement perishes under the operation of the statute.
“Hence, if the possession can be referred to any other source, than the parol contract, which it is claimed to support, even to the wrongful act of the party in possession, or to a different contract, the statute applies.
“* * * So with a tenant in possession, in case of a parol agreement for different terms of holding, if no acts are performed which clearly show that the possession is continued under the last agreement, it will be referred to the original tenancy, and such parol contract will be void.
“In the case now under consideration, the record shows no act that is not as clearly referable to the possession under the old tenancy, as the parol lease upon which recovery is sought.
“If it be contended that rent was paid under the parol contract, it may be replied, from aught that appears in the record, that the same rent was due on the original tenancy, under which the defendants were in possession.
‘! The possession of the defendants, then, is not shown, by unequivocal acts, to have been continued or held solely in performance of the parol contract, and must be referred tp the prior lease.
“Possession must accompany the contract, in performance of it, in all cases, to avoid the statute.”

In the instant case there was nothing to distinguish the possession of the tenant from a mere continuance — a holding over under the original lease, the rent being the same and no change apparent in the relation of the parties.

In the case of Crawford v. Wick, 18 O. S., 190, the first proposition of the syllabus reads:

“A parol contract for a new or supplemental lease between a landlord and his tenant, in possession under a former and subsisting lease, is within the statute of frauds; and the continued possession of the tenant does not take the parol contract out of the operation of the statute, where the continued possession of the tenant is as well referable to the first lease as to the second parol lease. Armstrong v. Kattenhorn, 11 Ohio, 265, followed and approved.”

In the opinion of the court in Myers v. Croswell, 45 O. S., 543, commencing at page 547, the following language is used:

“Whatever objection may be urged against the doctrine of part performance of contracts within the statute of frauds, or be said of its tendency to promote frauds, or of the necessity for courts to make a stand against further encroachments on the statute, it is too well settled to be now open to dispute, that certain acts done in the part performance of verbal contracts for the sale of lands, may operate to take them out of the statute, and generally possesskm of the land delivered and received under and in pursuance of the contract amounts to such part performance. But it is equally well settled that to have that effect the possession must be connected with and in consequence of the contract; it must be in pursuance to its terms and in part execution of them. In other words the possession must pursue and substantiate the contract.
“In Phillips v. Thompson, 1 John Ch., 131, 149, Chancellor Kent says: ‘It is well settled that if a party sets up part performance to take a parol agreement out of the statute, he must show acts unequivocally referring to, and resulting from that agreement, such as the party would not have done unless on account of that very agreement, and with a direct view to its performance. There must be no equivocation or uncertainty in the ease.’ ”

And on page 548, Pomeroy on the Specific Performance of Contracts, Section 108, is quoted as follows:

“A plaintiff can not, in the face of the statute, prove a verbal contract by parol evidence and then show that it has been partly performed. This course of proceeding would be a virtual repeal of the statute. He must first prove acts done by himself or on his behalf which point unmistakably to a contract between himself and the defendant, which can not, in the ordinary course of human conduct be accounted for in any other manner than as having been done in pursuance of a contract, and which would not have been done without an existing contract; and although these acts of part performance can not of themselves indicate all the terms of the agreement sought to be enforced, they must be consistent with it and in conformity with its provisions when these shall have been shown by the subsequent parol evidence. It follows from this invariable rule, that acts which do not unmistakably point to a contract existing between the parties, or which can be reasonably accounted for in some other manner than as having been done in pursuance of a contract do not constitute a part performance sufficient in any ease to take it out of the operation of the statute, even though a verbal agreement has actually been made between the parties. ’ ’

And then the rule in Ohio is stated as announced in Armstrong v. Kattenhorn.

In Clark v. Guest, 54 O. S., 298, which involved the question of an oral extension of time for the removal of standing timber under a previous written contract of sale thereof, the court says on page 305:

‘ ‘ Such verbal extension of time is as clearly within the statute as a verbal extension of a lease, which this court has held to be within the statute. Armstrong v. Kattenhorn, 11 Ohio, 265; Crawford v. Wick, 18 Ohio St., 190. ’ ’

And on page 306:

“The circuit court found as its conclusion of law upon the facts found, that it would be a fraud upon the defendant in error to revoke such verbal extension of time; and that the case was therefore taken out of the statute of frauds. This is not tenable. The statute was enacted to prevent frauds and perjuries. The law-making power knew that frauds and perjuries would be practiced with or without the statute, but it was thought that less harm would come from enacting and enforcing the statute, than otherwise. The only exceptions to the statute, engrafted therein by judicial interpretation, if not by judicial legislation, that can be justly defended, are cases in which the acts of both parties are such as to imply a contract with substantially the same certainty as would be shown by a written memorandum, as in the case of a verbal sale of lands followed by a delivery of possession to the purchaser, and valuable permanent improvements made by him with the knowledge of the vendor.
‘1 To say that to refuse to carry out a verbal purchase of standing growing trees is a fraud on part of the owner of the trees, is to disregard the statute, and in effect a repeal thereof. * # * He had no legal right to rely upon the verbal contract, and where there is no right there can be no fraud. If he intended to rely upon the extension of time he should have caused the contract therefor to be reduced to writing. The statute was enacted to protect men in their property rights and it should be enforced unless in cases clearly within some of the well established exceptions. ’ ’

The rule in Ohio as to a tenant holding over is laid down in B. & O. R. R. v. West, 57 O. S., 161, the last two clauses of the syllabus being as follows:

“Where, after the expiration of the term, the tenant holds over and pays rent for a part of another year, without any new agreement with the landlord, he becomes a tenant for that year at the same rent, and can not terminate the tenancy before the end of the year without the landlord’s consent.
“The obligation of the tenant to pay the rent for the year, in such case, is not within the statute of frauds; the holding over being equivalent to a new entry.” '

And in the opinion, on page 168, the court say:

The tenant, by holding over, is regarded as -consenting or proposing to enter upon a new term for another year at the same rent and upon the conditions of the prior occupancy, and the landlord’s acceptance of the proposed tenancy is presumed from his receiving the rent, or other aequiesence." The agreement arises by implication of law from the conduct of the parties after the expiration of the former tenancy; and, in this respect, is essentially different from those agreements made by parties while in possession under an existing lease, for a new lease to commence in the future; as was the case of Armstrong v. Kattenhorn, 11 Ohio, 265, and Crawford & Murray v. Wick, 18 Ohio St., 190.”

This language is quoted with approval in Gladwell v. Holcomb, 60 O. S., 427, in which case the law is thus stated in the syllabus:

“When the tenant holds over after the expiration of any year, the landlord has the option to treat him as a tenant for another year, or as a trespasser; and unless there has been an election to treat him as a tenant, possession may be recovered by the landlord in an action of forcible detention, after the service of the three days ’ notice required by the statute.
“A parol agreement for a lease to commence in the future, with a person already in possession of the premises as a tenant, is within the statute of frauds. ’ ’

In the case of Strong v. Schmidt, 15 C. C., 233, which involved a question of surrender, the court said in its opinion, pages 238 and 239:

“The testimony clearly shows that the defendant was in possession under a written lease. He refused to sign a new lease for the reason that he was not satisfied with its terms. He wrote letter to the other parties, saying that he would hold from month, to month, and stated that orally, perhaps to the agent. The parties themselves, instead of consenting to that, answered that they would not consent. So that we have the terms, so far as any writing is concerned. We have a proposition to hold on different terms, with a refusal on the part of the landlord and under that state of facts the defendant continued in possession. There was no change in possession, nor did the landlord in any manner or form recognize that there was a holding over under different terms than those of the lease. We see no reason whatever why the statute of frauds does not apply here and we think that all the evidence in regard to the statements made by the defendant as to how he would hold or in what manner was entirely irrelevent and illegal. -
‘ ‘ The rule of law is — it is said that the presumption of law is, that he holds under the former contract from year to year. The language is varied by different courts in delivering the opinions: by some it is said to be a ‘presumption,’ by some it said to be an ‘implied contract,’ and by some it is said to be a ‘constructive contract; ’ but no matter what it is called the law clearly is, that where the party has continued in possession after the termination of a year’s lease and the landlord has accepted rent from him, that the lessee holds for another year, and that the same is as binding and obligatory upon both parties, as it would be if re-executed. The landlord can not evade it, only at the expiration of the year, nor can the tenant leave possession of the premises. He is likewise bound to pay rent for the year. If he chooses to leave the premises, his obligation still remains to pay. It is a binding contract. That contract can only be set aside in some manner that has reference to the law of the land. There are two and perhaps three ways in which it can be set aside; a new contract may be made, and there may be a surrender of the premises; but the new contract, in order to be binding, must be either a contract in writing under the statute of frauds, or it must be, if a parol contract, in pursuance of a change of possession, as the Supreme Court has said, which makes a new and binding contract.”

And in Schneider v. Curran, 19 C. C., 224, the same doctrine was recognized in the syllabus, as follows:

“A parol contract for a lease between landlord and tenant, and the tenant in possession under a prior verbal lease, is within the statute of frauds and void, and the continued possession alone of a tenant does not take such contract out of the operation of the statute; there must be a new possession taken to do this.”

Notkwithstanding the clear and unqualified words of the statute, G. C., 8620, 8621, and the reported decisions shown in the long line of authorities in this state, none of which have been in any way questioned, it is now claimed that the settled rule is to be changed because of the case of Moore v. Harter, 67 O. S., 250, and the unreported case of Corbin v. Hafer, 72 O. S., 685, which reversed the decision of the superior court in general term, Hafer v. Corbin, 6 N.P. (N.S.), 468. The trial judge in the instant case felt himself bound by this unreported case. In passing on the motion for a new trial, he said:

“"Whatever may have been the law in this state on this question, it certainly was changed by the ruling of the Supreme Court in the case of Corbin v. Hafer, 72 O. S., 685. In that case the same question as that presented in the case at bar was decided. The general term held such agreement void. * * * The Supreme Court reversed this and entered judgment for the defendant. * * *
“Believing myself bound under the rule of stare decisis to follow the Supreme Court the motion for a new trial on this point is overruled. ’ ’

It is true as shown by the report in 6 N.P.(N.S.), 468, that the question now before this court was involved in Gorlin v. Safer. But the Supreme Court did not desire to make the decision of that case a rule of law to control future cases. No opinion was written and the court thus refrained from disturbing the authority of any of the cases cited above beginning with Armstrong v. Kattenhorn. We have been frequently admonished by the Supreme Court itself that an unreported case can in no wise be regarded as an authority and, a fortiori, that rule must be held to prevail where as in this case to hold otherwise would have the effect of changing decisions that have been repeated time and again by that court for more than seventy years, without having -a single line announcing such change or giving any reason for it.

But it is contended that, as the court based its action in Corbin v. Hafer on the authority of Moore v. Harter, 67 O. S., 250, this action must be regarded in the same light as a reported decision extending the exception to the general rule announced in that ease. In Moore v. Harter a landlord had advised his tenant before the expiration of his term that the rent for the succeeding year would be increased fifty dollars if he held over. The tenant did hold over, and the terms and conditions of the criginal lease were held to be modified as to the rate of rental, in accordance' with that notice. The court say (67 O. S., 254) in the opinion:

“The tenant’s dissent from the terms proposed by the landlord amounts to nothing unless the latter accepts it, because the presumption is that one holding over, after notice from the landlord that a change of terms would be required, is presumed to do so on the terms proposed by the landlord. Otherwise he would put himself in the wrong and would be liable to be treated as a trespasser.”

And the court distinguished Armstrong v. Kattenhorn as not pertinent to that case, because the landlord owned the property and had an absolute right to fix the rent, and the rights of the tenant expired with his lease, unless a new term was created by his holding over, under R. R. Co. v. West, 57 O. S., 161, in which event the new term, would be under the increased rent.

A careful reading of Moore v. Harter will show that the question there decided does not apply to Corbin v. Safer. And the mere reference to it as an authority in the list of unreported cases in 72 O. S., 685, can not be held to extend that decision so that it will apply. To do so would in effect wipe out the statute of frauds entirely as between a landlord and a tenant in possession. A tenant once in possession could, regardless of the statute, fasten any kind of a lease upon the landlord if he could only secure the necessary witnesses to show a parol contract.

Since the decision of Corbin v. Hafer, 72 O. S., 685, at least two decisions have been announced which recognize no change in the established rule: Hopkins v. Carroll, 11 C.C.(N.S.), 605; Rickard v. Utter, No. 619, Court of Appeals of Hamilton County, decided by the judges of the sixth district, Chittenden, J., writing the opinion.

The language of Redesdale, Lord Chancellor, in Lindsay v. Lynch, 2 Sch. & Lef., 4, quoted in the argument of counsel in the report of Armstrong v. Kattenhorn, 11 Ohio, 267-8, is especially applicable to the situation here:

“I am not disposed to carry the cases which have been determined on the statute of frauds any further than I am compelled by former decisions. The statute was made for the purpose of preventing perjuries and frauds; and nothing can be more manifest, to any person who has been in the habit of practicing in courts of equity, than that the relaxation of that statute has been a ground of much perjury and much fraud. If the statute had been rigorously observed, the result would, probably, have been, that fewer instances of parol agreements would have occurred. Agreements would, from the necessity of the case, have been reduced to writing; whereas, it is manifest that the decisions on the subject have opened a new door to fraud; and that, under pretense of part execution if possession is had in any way whatever, means are frequently found to put a court of equity in such a situation, that, without departing from its rules, it feels obliged to break through the statute.”

The majority of the court are unwilling because of an unreported ease to read into a reported decision such an extension of the exception to a general rule as will in effect overrule at least four well considered decisions of the Supreme Court of acknowledged authority. We can at least know what they decide, and we feel bound to follow them rather than to conjecture that they have been displaced, modified and overruled by an unreported case.

Indeed this has been distinctly declared to be the proper course, in Louden v. Cincinnati, 90 O. S., 144, in the opinion of the court at pages 157 and 158, where the court practically admitted that the question under discussion had been given a contrary decision in the case of Armstrong v. Cincinnati, 12 C.C. (N.S.), 76, which had been affirmed without report by the Supreme Court in 82 O. S., 454. But no weight was given to this unreported decision; after suggesting that the reason for its affirmance may have been the fact that the weight, of evidence was involved, the court say:

‘ ‘ The law of this state in reference to this subject having been declared in the ease of City of Tiffin v. McCormack (34 O. S., 638), and Bradford Glycerine Co. v. St. Mary’s Woolen Mfg. Co. (60 O. S., 560), it would follow that if this court intended to depart from the doctrine announced in these eases it would have reported the case and overruled these authorities.”

The doctrine of stare decisis requires that rules of law when c] early announced and established by a court of last resort should not be lightly disregarded and set aside, but should be adhered to and followed. Proper judicial subordination requires that this court should be governed by the written decisions of the Supreme Court, and it is not at liberty to modify or extend clearly defined doctrines laid down in reported cases on some presumption that they may have been changed by reason of some unreported case. If a decision of the Supreme Court is to be overruled or modified, it must be done in distinct terms by the written decision of that court, and can not be implied from the judgment in an unreported case.

The salutory effect of the statute of frauds has long been demonstrated, and it should be sustained in full force while it remains a part of our statute law. If it is desired to modify or repeal it, that can be done by the General Assembly, and judicial legislation should not be invoked to extend the exceptions already engrafted upon it by decisions of any court other than that of last resort.

The judgment of the court of common pleas is therefore reversed and the cause remanded.

Jones (E. EL), P. J., concurs; Gorman, J., dissents.

Gorman, J.,

dissenting:

I find myself unable to concur in the conclusion reached in this ease by my associates, for the following reasons:

The question presented in this ease for our consideration is: Gan a binding parol agreement be made between landlord and tenant while the tenant is in.possession of the premises under a written lease for one year and before the expiration of the term, whereby the term of the holding is changed to a tenancy from month to month ?

The defendant occupied the premises belonging to the plaintiff in error under a lease for one year. Defendant in error claims that before the expiration of the year he made a verbal agreement with the plaintiff in error that he might hold from month to month, after the expiration of the year, upon the payment of the same monthly rental until such time as he desired to vacate the premises. Plaintiff in error, who was defendant below, denied that such an agreement was made.

The tenant, defendant in error, vacated the premises after occupying them thirteen months, and at the end of the second year the landlord, the plaintiff in error, brought suit to recover the difference between the amount of the rent which would be due under the lease, and the amount of rent which he received upon a re-letting of the premisess. The landlord, 'Walker, rented the premises for a part of the year and received $291.67, while the rental under the lease was to have been $440 for eleven months; and the action was- to recover the difference — $148.33.

Upon the trial of the ease the court admitted evidence of the parol agreement between the landlord and tenant, over, the objection of counsel for plaintiff.

The court charged the jury in substance that if they should find that the landlord and tenant had made a parol agreement while the tenant was in possession under the lease, the tenant might after the end of the year continue as a tenant from month to month, and if they further found that the tenant had paid for the entire time that he had occupied the premises, they should' return a verdict for the defendant. This charge was excepted to by the plaintiff, and the jury returned a verdict in favor of the defendant. The cause is now here on error.

It is claimed that the court erred in admitting the evidence of the oral agreement between plaintiff and defendant and in charging as above set forth.

In the unreported case of Corbin v. Hafer, 72 O. S., 685, the court says:

“Judgment of the general term reversed and that of special term affirmed, on authority of Moore v. Harter, 67 O. S., 250. ’ ’

The case of Corbin v. Hafer as decided by the general term of the Superior Court of Cincinnati is found reported in 6 N.P. (N.S.), 468, Judges ITosea, Ferris and Hoffheimer sitting. The facte in that ease as shown in that report disclose a case identical with the instant case. In the trial of that case in the superior court in special term before Judge Rufus B. Smith, a verdict was returned in favor of the defendant and a judgment entered thereon. Corbin claimed to have made a verbal agreement with Hafer, while he, Corbin, was occupying the premises under a lease from year to year, whereby Hafer agreed that he, Corbin, could after the expiration of the year occupy the premises from month to month. Hafer denied that this agreement was made. Evidence was admitted by the trial court of the conversation between Corbin and Hafer that established the parol agreement for a holding from month to month. A special charge ashed by Hafer to the effect that, unless the agreement as to the" change of the terms of tenancy was in writing under the statute of frauds the agreement would be null and void, was refused and exception noted. In the general charge the court told the jury that if the agreement was established in parol and the rent was paid for the entire time that the tenant occupied the premises Hafer could not recover against Corbin for the remainder of the year, and an exception was noted. The general term reversed the special term and entered judgment in favor of Hafer for the amount of the rent due for- the remainder of the year. These appear to be tbe only errors claimed to exist in this case, and the Supreme Court having reversed the general term upon the authority of Moore v. Harter, supra, we should look to that case to determine what principle was involved in its decision.

In Moore v. Harter, 67 O. S., 250, a tenant was occupying premises under a yearly lease from April 1, 1892, and without any further lease continued to occupy the same until April 1, 1895, paying therefor $450 per year. Before the expiration of the last year the landlord notified the tenant that the rent for the next year would be $500 per year instead of $450. The tenant held over without giving any notice, intention or intimation that he was dissatisfied with the increased rent. It was held that by holding over after being notified by the landlord that the rent would be increased from $450 to $500 a year the tenant became liable for the entire yearly rental at the increased rate of $500. The syllabus of the case is as follows:

“When a tenant at the expiration of a written lease holds over as a tenant from year to year, upon the terms of the original lease, and the landlord notifies the tenant, before the beginning of another year, that if the latter holds over into another year the rent will be increased, and the tenant does so hold over, the terms and conditions of the original lease will be modified in respect to the rent so as to conform to such notice, but in all other respects they will continue to be applicable to the new tenancy. Armstrong v. Kattenhorn et al, 11 Ohio, 265, distinguished. ’ ’

On page 253 of this report the court says:

“It follows that the lessor and lessee may by agreement change the terms of the original tenancy; and, if, before the beginning of another year, the landlord notifies the tenant that the rent will be increased and the latter nevertheless holds over to another year, to that extent the terms of the original lease will not apply, but it will be applicable in all other respects. The reason of this is that the tenant must be presunfed to have assented to the change. The authorities are numerous and conclusive on this point.” Citing several authorities.

On page 254 the court distinguishes the case of Armstrong v. Kattenhorn, 11 Ohio, 265, as follows:

“The doctrine of Armstrong v. Kattenhorn is that if the possession of the tenant ‘can be referred to any other source than the parol contract which it is claimed to support, even to the wrongful act of the party in possession, or to a different contract, the statute applies.’ The possession in that ease was held to be ambiguous and as easily referable to the old lease as to the new one, and hence that the latter was within the statute of frauds and void. Although the statute of frauds declares that leases not in conformity with the statute shall be void, yet that will not prevent a periodical tenancy, subject to the terms of the original lease, from arising by taking. possession under the invalid lease and paying rent in accordance therewith.” (Citing numerous authorities.) “And that is precisely that which was done in this case and in all the cases cited above as included in the same class. The continuing in possession, after notice from the landlord to the tenant that he could not do so except under prescribed conditions, is presumed to be a possession under the named conditions. It could not be referable to the former lease without showing that the landlord had consented to withdraw the conditions. ’ ’

In the case before us the rule which the trial court laid down was applied on a state of facts, the converse of the facts in the case of Moore v. Harter, supra. In Moore v. Harter the landlord stated the terms and conditions upon which the tenant could remain, and the tenant remained without making any objection, and it was held that by so doing he had agreed to the landlord’s conditions and acquiesced as it were, and was therefore bound. In the case before us the tenant made the proposition to the landlord that he would remain as a tenant only from month to month and the landlord agreed to this proposition. The tenant continued in possession after this for one month, and it appears to me that if the rule laid down in Moore v. Harter is applicable to the case of Corbin v. Hafer it must also be applicable to the case under consideration. The tenant and the landlord agreed verbally to a change in the terms of the lease, and the continued possession of the tenant is under the new parol agreement made between the landlord and tenant. It appears to me that if a parol agreement between landlord and tenant to increase the rent can be made while a tenant is holding under a written lease, then an agreement between the landlord and tenant to change the tenancy from a yearly to a monthly one can also rest in parol.

I apprehend that there is no special merit in a claim that a landlord only may make an oral proposition to modify the terms of a written lease, before the expiration of the term, which may be orally accepted by the tenant or accepted by the acquiescence and thus bind the tenant. Upon what rational grounds can it be claimed that a tenant under a written lease for a year may not -make an oral proposition to, his landlord during the term, to modify its terms as to the rent or duration of the term, which being accepted orally by the landlord will not bind the landlord ? Shall there be a different rule of law applied to a tenant from that applied to a landlord? Can it be material whether the agreement between the landlord and tenant results from the landlord accepting verbally the tenant’s oral offer, or the tenant verbally accepting the landlord’s oral offer? It appears to me to be a ease of tweedle-dum and tweedle-dee. If the holding over is referable to the oral agreement, then it must stand as the agreement of the parties regardless of whether the proposal came from the landlord or the tenant. The only question is: Did the minds of the parties meet in the oral agreement? ,

I would not rest my dissenting opinion upon the unreported case of Corbin v. Hafer, but I find that the principles laid down in Moore v. Harter upon the authority of which Corbin v. Hafer was reversed by the Supreme Court, apply to the facts in the instant case, and I come to the conclusion that the court of common pleas in the trial of the case below did not err in admitting the evidence complained of, showing the parol agreement between the landlord and the tenant; nor did the court err in its charge to the jury that they should consider the evidence of the oral agreement.

The jury having found against the landlord Walker, I can not say that the verdict is against the weight of the evidence. Nor indeed is it seriously claimed that this court should reverse the lower court upon the weight of the evidence, but only on account of the errors of the trial court in admitting the evidence of the parol agreement to change the terms of the tenancy, and in refusing to rule out that evidence after it was admitted, and in charging that the jury might consider parol evidence as to the change of the terms of the tenancy.

It appears to me that under Moore v. Harter plaintiff is not required to show that the agreement for a change of the tenancy was in writing under the statute of fraud in order to make binding the agreement between landlord and tenant entered into while the tenant is in possession under a written lease from year to year or for any other term.

Jones on Landlord and Tenant, Section 210, page 250, in dis cussing this question uses the following language:

“But when the landlord has by his conduct led the tenant to believe that he will not be charged as tenant for the entire year, it is axiomatic that the landlord can not change his position and fix an unexpected burden of liability upon the tenancy. So it follows that any new agreement between a landlord and tenant relative to the continued occupancy of leased premises after the termination of the term precludes the landlord from charging the tenant with liability for a full year’s rent by reason of such continued occupancy.
‘ ‘ This result is not contingent on the fact that the new agreement is valid and capable of enforcement; it rests on an estoppel against the landlord for inducing the tenant to act on his representations. And it matters not that the new contract was invalid under the statute of frauds because not in writing.” (Citing Singer Mfg. Co. v. Sayre, 75 Ala., 270; Crommelin v. Theiss, 31 Ala., 412; contra, Parker v. Hollis, 50 Ala., 411.) “The continued payment and receipt of rent after the expiration of the term is not necessarily inconsistent with the existence of a new agreement between the parties.”

Without undertaking further to discuss all the authorities cited by counsel for the parties to this proceeding, I content myself with holding that under the authority of Moore v. Harter, 67 O. S., 250, approved in Corbin v. Hafer, 72 O. S., 685, a parol agreement may be entered into between landlord and tenant, during the term of a written lease for one year while the tenant is in possession under the lease, which modifies the terms and conditions of the lease, and the statute of frauds can not be invoked to nullify the parol agreement.


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license: Public Domain

text:
    ABATEMENT OF PUBLIC NUISANCES.
    Circuit Court of Cuyahoga County.
    John Schueszler v. The Cleveland, Medina & Southern Electric Railway Company and Albert R. Gibson.
    Decided, May 28, 1900.

      Nuisances — One Buffering no Peculiar Injury May Not Abate a Public Nuisance.

      One who suffers no peculiar injury from the existence of a public nuisance, such as a fence in a public highway, has no right to abate the nuisance, when it does not interfere with public travel in the highway.

      Dickey, Brewer & McGowan, for plaintiff in error.

      White, Johnson & McCaslin and Hackney & Johnson, contra.
    Caldwell, J.; Marvin, J., and Hale, J., concur.
   We reverse this case and remand it for a new trial. At the beginning of the trial below admissions were made of certain facts by the attorney opening the case to the jury, and upon his statements taken as facts in the case, the court entered a judgment against the plaintiff below, who brings the action here to have it reversed.

The question was discussed here as to whether that is proper practice, but we find it unnecessary to say much on that subject. We have examined the bill of exceptions, which consists very largely of what the attorney said and what was stated on the other side in answer, and then the second statement by way of a reply made to the jury by the attorney for the plaintiff. The court supposed that the attorney had stated every fact necessary to be proved on the other side, that is, had admitted every fact in order to defeat the plaintiff, and that being true, the court entered judgment against the plaintiff.

The defendant in this action, the Cleveland, Medina & South: ern Railway Company, was constructing its road along a highway at a point where a farmer had his fence a few inches or perhaps a foot or two, in the highway, just as many farmers have their fences, and the railroad company undertook to take down the fence and put it back on the line where it should have been.

The farmer and his wife and his son-in-law, Schueszler, came out to defend the fence, and drove off the employees of the railroad company; thereupon the company had the parties arrested for obstructing the highway, under Section 6921, Revised Statutes.

Schueszler was cleared of the charge made against him, and brought this action for damages.

The statement made by the plaintiff’s attorney in opening his case seems to admit, on behalf of his client, that the fence was in the highway; and that being true the court thought if that fact was established that it would justify the railroad company in putting it back upon the line. The statement included an allegation that the public had all of the highway it needed for any lawful purpose, and that the purpose for which the railroad company was proposing to use it was an unlawful purpose.

Now, whether that was unlawful or not we do not know. If this was a steam railroad, or a railroad in the nature of a steam railroad, there is no doubt but that an appropriation in the highway would be necessary before it could go upon the highway, while if it comes under the very noted Cumminsville case in 14 O. S., and is merely the usual mode of local traffic upon the highway, an appropriation may not be necessary; and we are unable to learn from this bill of exceptions which kind of a railway it is. There is no statement that shows which kind of a railway it is and no assumption can be made that it is one kind or the other. Even an electric road may come under the head of the case decided in 35 O. S., as a steam railroad. Electric roads are becoming of such length and of such a nature that there is a point somewhere where it becomes necessary for them to appropriate a right-of-way in the highway. Where the line is that marks the difference between a street railroad and a railroad that passes through the country for general traffic, we do not attempt to say. We have held, though, in another case that it was not necessary for this company to appropriate. But the proof was not very clear before us as to the character of the road they were going to build. It was insisted that the proof was sufficient to show that they were to have their tracks in such shape that no other person could possibly use it, as in the city, by driving upon it or crossing it except in such places as crossings are made. That case has gone to the Supreme Court, where, perhaps, some law will be determined as to the character of this road. But the evidence was not very clear upon that point and we held it the same as a street railway — that they had a right to pass without appropriation.

The law in regard to this fence, like many other nuisances that exist, is, that not every person who uses the highway has a right to abate the nuisance. If a man can travel upon the highway, as everybody else does, then because some one is trespassing upon the highway with a fence which does not interfere with his travel upon the highway, he has no right whatever to abate the nuisance. A man driving along and seeing a fence that does not interfere with him, has no right to get out and knock down the fence; there must be a damage to him that is peculiar to him and interferes with his proper use of the highway before he can interfere with such a nuisance. It is a matter that belongs to the public, to the officers that have been elected to look after these things. So that if the railroad is the kind of a one that has no right upon that street or road, then it had no right to interfere by knocking down that fence, even if it did interfere with the company, because it would be there itself without right as to the adjoining owners. And if that is true then it would have no right to undertake to take into its hands the law and abate the nuisance any more than a private individual would have. It is there simply as a private individual. Whether it has a right to use the street or not without appropriation, we do not know from this bill of exceptions. But it is said that this party is seeking to recover for damages for being arrested for a thing that he admits he did do, for he answers and admits that he was upon these premises. Schueszler is not shown to be the owner of the fence, and if he was there maintaining that fence at all it was simply in helping the owner to keep it there 'and that was the only offense which conld be charged against him. And the right of this railroad company to nse the street must clearly appear before it has a right to arrest people for using the street by having their fences out in the highway. This fact of the right of the railroad company does not appear, and it is not necessary to pass upon other questions.

There are other cases pending below; and I would say that in our investigation of these we find that this man Schueszler stands in quite a different relation to this matter than does the man who puts his fence upon the righway and keeps it there; Schueszler did nothing more than to keep parties from tearing it down, and whether that party had any right to take it down or not, we do not know from the bill of exceptions and, because of that lack of knowledge, we hold that the court below had no right to enter judgment in this case.


text:
    INJURY THE RESULT OF OWN NEGLIGENCE.
    Circuit Court of Cuyahoga County.
    William Downing v. The Cleveland Electric Railway Company.

    Decided, January 14, 1901.

      Negligence• — One Driving in Dangerous Place on Highway from Choice, Guilty of Negligence.

    Where approaching a sharp curve in the highway, one from choice and not from necessity, drives so close to a street car track that his wagon is struck by a car coming round the curve before he can turn out, his injury is the result of his own negligence.

      Winch Thompson and J. H. Smart, for plaintiff in error.

      Kline, Carr, Tolies •(& Goff, contra.
    Caldwell, J.; Marvin, J., and Hale, J., concur.

       Affirmed without opinion, Downing v. Railway Co., 68 -Ohio State, 648.

   The plaintiff was injured in a collision between his wagon and a car belonging to the defendant company, upon the highway in the village of Euclid in Cuyahoga county.

He came into market the evening before the injury, and was driving out in the daytime. He himself was lying down in the wagon or reclining upon some boxes, and his daughter, a girl about fifteen years old, was driving the team. As they approached Euclid and were part way down the hill going north, they met a car, and the wagon and team and he himself were injured.

The highway at the point where he was injured is on a down grade going north and in it there is a curve curving to the west and on the concave part of this curve, just off the highway, are bushes growing. On the highway next to the bushes, on the south side, is the street railway track; next to that is a dirt track for teams, and still north or west of the dirt track is a plank road. Teams can drive either upon the plank or upon the dirt road.

It appears that the plank was somewhat out or repair at the time of this injury, but not so much that it could not be used in the ordinary modes of travel. The plaintiff was driving upon the dirt track of the highway, next to the railway track, and while going down the hill, a car approached from the village of Euclid and the wagon was so near the track that it was hit by the car and the injury complained of followed.

The allegations of negligence are: in not trimming up the trees and shrubs along the south side of said road, and allowing them to remain in that condition so that the approach of defendant’s cars could not be observed; in failing to warn by sound of gong or other signal when approaching said curve; in running the motor and approaching the said curve at a high and dangerous rate of speed, well knowing the dangerous condition of the road at that point, and well knowing the difficulty of checking the speed or stopping the motor when going at such a high rate of speed; in not keeping a proper outlook for travelers, and in not reversing the motor, or even applying the brake until it was too late.

The defendant answered to these allegations, denying each one and any negligence on the part of the defendant in error, and averring that if the plaintiff received injuries, it was due to his own contributory negligence.

The ease went to trial, and the court directed a verdict for the defendant, the railway company. The only grounds of error that plaintiff relies upon in'this court are: that the court erred in directing a verdict for the defendant in error, which verdict was against the weight of evidence; and, second, the court erred in overruling the motion of the plaintiff in error for a new trial; and that the verdict was contrary to the law and the weight of the evidence.

The plaintiff in error contends that he had produced evidence tending to show that the defendant in error was guilty of one or all of the allegations of negligence in the petition. That this was a place where a car might suddenly appear upon a person traveling upon the highway without ability to see it before its approach, on account of the bushes that grew in the line of vision and that for that reason the railroad company should, upon approaching such a dangerous place, give some signal, and not rely upon persons traveling upon the highway seeing the car. And he claims, further, that he was traveling upon the dirt portion of the highway where he had a right to travel; and having a right to travel upon that portion of the highway, he was guilty of no negligence; and that- having shown that the defendant in error was guilty of negligence that, instead of a verdict being directed by the court against him, it should have been submitted to the jury, and that upon the evidence as produced he was entitled to a verdict by the jury; and that by reason of this misdirection of the court, he was prejudiced and is entitled to have the judgment reversed and a new trial granted.

But as the evidence stood, it clearly shows that the plaintiff in error hnew that he was liable at any moment to meet a ear upon the track. He knew the dangerous character of the place and with this knowledge he drove his team, or permitted his daughter to drive his team, so near to the railroad track, that, when the car did approach and did come suddenly upon them, she was unable to get the team away from the track, if she had made any attempt to do so, in time to prevent the wagon being hit by the car.

It is true that plaintiff had a right to drive upon any part of the highway. lie had the right to drive upon the railroad if he saw fit to do so; it is a part of the highway — and there is no law forbidding him to use any part of the highway. But a clear right may be exercised under such circumstances that the party will be guilty of his own injury when that occurs through a wrongful exercise of his rights and privileges.

While it was his right to drive upon the railroad track, yet he would be guilty of negligence if he drove upon the track at a point where he could not see a car approaching him at any distance ahead. And it was his right to drive upon the dirt part of the highway, but, knowing the dangerous character of the place and how suddenly he might be run down by a car, and knowing that he would be unable to see the car approach, it was his duty to drive so far from the track that, if the car did suddenly approach, his wagon would not be hit.

There is no reason assigned why he might not have done this as well as to drive as close to the track as he did. The only reason that might be assigned was, that the dirt road was a better road to travel upon than the plank, but the evidence shows that the dirt road was wide enough so that he could have traveled entirely upon that and yet have been out of reach of the car.

As the evidence stood at the time the judge directed the verdict, there was no contradiction in it whatever as to where the wagon was, how close to the track; as to the manner in which it was being driven; as to the fact that the plaintiff in error knew all the surroundings quite as well as did the railroad company; and yet he permitted his wagon to be driven so close to the track that it would be hit by a car if it approached at that point, and, in so doing, he was clearly guilty of contributory negligence, and, as the evidence stood, that became purely a question of law for the court, there being no contradiction in the evidence whatever. The facts leading up to the conclusion of contributory negligence being all established, without contradiction and without any controversy, the court had a right to conclude that there was contributory negligence on the part of the plaintiff in error, and did right to direct the verdict as it did. We find no error in this case, and the judgment of the court o£ common pleas is affirmed.


text:
    APPEAL AGAINST JOINT DEFENDANTS.
    Circuit Court of Cuyahoga County.
    State of Ohio, ex rel John C. Larwill, v. Harry L. Vail, Clerk of the Courts.
    Decided, December 3, 1900.

      Appeal — When Appeal by One Party Operates as an Appeal as to All.

    Where an appeal is perfected by several parties claiming funds in the hands of two joint defendants, and by one of the joint defendants, such appeal takes the case up in so far as any decree rendered against the other defendant in the lower court is concerned.

      J. D. Critchfield, for plaintiff.

      C. H. Kibler and Henderson é Quail, contra.
    Caldwell, J.; Marvin, J., and Hale, J., concur.
   This is an action in mandamus, brought by the plaintiff against the defendant in this court, asking for an order from this court directing the clerk to issue execution on the judgment obtained by John C. Larwill against Stevenson Burke in the court of common pleas of this county.

In that action John C. Larwill was plaintiff, and it was brought against Stevenson Burke and Charles H. Hickox, executor of the estate of Charles Hickox, deceased, and against Lee and Hull and others. The complaint in that action was, that Burke and Hickox had in their hands, as directors of the Cleveland & Snow Fork Coal Company, certain moneys that belonged to the company, and that the company was under the control of Burke and Hickox as directors of the Cleveland & Snow Fork Coal Company, and that a prosecution on the part of the company could not be had for the reason that the company was entirely under the control of Burke and Hickox. The relief asked was that the stockholders might recover from Burke and Hickox the money that was due them from the company by reason of their being stockholders in the same. Larwill claimed to be such a stockholder and was found to be such; so were Lee and Hull; and it was found that the allegations above referred to in the petition were true. A judgment was rendered in favor of Larwill for the amount of his claim as found by the common pleas court against Burke and Hickox, and a like judgment was obtained by Lee and Hull. There was a contest in that action between Larwill and Lee, and also a contest between Larwill and Hull. Larwill claimed to be the owner of the stock which formed the basis of the claim of Lee against Burke and Hickox, and that was denied by Lee.

The same was true as to the issue between Larwill and Hull. Those issues were determined severally in favor of Lee and Hull, and against Larwill. Hickox, as administrator, appealed. The corporation, the Cleveland & Snow Fork Coal Company, was a party to the action and it appealed. Larwill appealed as to the issues found against him, which issues were between himself and Lee, and himself and Hull.

The case was brought into the circuit court by these appeals, and has been tried by the circuit court. In that trial the circuit court held that the case was of such nature that it was appeal-able, and it is not necessary at this time to say anything more upon that proposition, and it is not sought to have the court reverse itself as to that holding in this action.

The questions to be considered here are, whether the appeal by Hickox, as administrator, and by the Cleveland & Snow Fork Coal Company, and by Larwill, one or all of them, brings up the ease as to the issues against Judge Burke.' The case is one against Burke and Hickox, as administrator, as joint obligors in such a manner that they are not separated in any manner by the pleadings or anything that was done in the case as to the other, unless it is the fact that Charles Hickox in his lifetime is said to have become liable jointly with Judge Burke for this money to the stockholders of the company, but that by his death and the appointment of his administrator, the obligations became separated and several, and that being true, the appeal by the administrator would not bring the action up as to Judge Burke.

We are unable to agree with counsel, that the death of Hickox had any such effect as is claimed for it, and it is our opinion that the appeal of Hickox brought up the case as to Judge Burke as well as to himself.

Larwill appealed, in which appeal he seeks to have the judgment obtained against him by Lee, as well as the judgment obtained against him by Hull, reversed and a different holding made. If that appeal brings up only Lee and Hull, and Lee and Hull are unable to obtain a judgment against Judge Burke, then Larwill can get none unless Burke is in the circuit court, for setting aside the judgment of Lee and Hull by the appeal would leave money in the hands of Burke and Hickox unappropriated so far as can be done by any adjudication; and it is that money that is sought to be reached by Larwill. It appears to us that in order to reach the money that was to be paid by Judge Burke on the part of Larwill, that Judge Burke must be here as the custodian of the money, whether as trustee or in any other capacity.

Hence we conclude that the appeal of Larwill as against Lee and Hull brought up the subject-matter of their litigation, which was as to who was entitled to the money going to the person who should be held to hold the stock in litigation between them, and that the money can not be in the court without the persons who hold it are there,; and that, therefore, that appeal brought up all persons connected with the case so far as any questions in this action are concerned.

The writ of mandamus is denied.


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

text:
    PRIORITY AMONG MORTGAGES EXECUTED BY HEIRS.
    Court of Appeals for Hamilton County.
    Amelia Schell v. Mathilda Bernhard et al.
    Decided, July 19, 1915.

      Mortgages — Acceptance of Mortgage from, Heirs — In Satisfaction of Claim, against Estate — Not a Waiver of Priority Over Previous Mortgages by the Heirs, When.

    One who holds a claim against the estate of a decedent does not, by accepting a mortgage executed by the heirs, waive his priority over previous mortgages by the heirs, in so far as these mortgages to pay off general creditors of the estate, the subsequent mortgage containing a recital disavowing any intention to waive such priority.

      George D. Harper and Black, Swing & Black, for Southern Ohio Loan & Trust Co.

      Johnson & Levy, for Western & Southern Life Insurance Co.

      Kramer & Bettmcmf for the Alms & Doepke Co.
   Jones (E. H.), J.

This is an action for partition of real estate left to Karl Romer, deceased. Action was brought by the plaintiff, Amelia Schell, daughter of said Karl Romer, against the other surviving children, the Alms & Doepke Company, the Western & Southern Life Insurance Company, the Southern Ohio Savings Bank Company et al.

There is no controversy among the heirs as to their respective shares in the realty. The issues drawn by the pleadings and upon which the case was appealed to this court are between the mortgagees, the same being the Western & Southern Life Insurance Company, the Southern Ohio Savings Bank Company and the Alms & Doepke Company, all of whom hold mortgages upon the property which bear date subsequent to the death of said Karl Romer and were executed by his widow and children. At the time of the death of Karl Romer he owed a considerable sum of money to the Alms & Doepke Company. The two other mortgagees at that time held mortgages on the real estate herein partitioned. The subsequent mortgages to them were given to secure loans which embraced the sums due upon the former. mortgages and also additional sums in each case procured by the heirs to pay off the indebtedness of the estate. It was fifteen months or more after the death of said Karl Romer, and some time after these mortgages were given, that the mortgage to the Alms & Doepke Company was executed and delivered by the widow and next of kin to secure the payment of the debt owing to said company by decedent.

The question we are called upon to decide is whether or not the Alms & Doepke Company, by accepting this mortgage, waived the priority of its claim against decedent’s estate in favor of the other two mortgagees. No question is raised by the Alms & Doepke Company as to the priority of their mortgage in so far as they represent money advanced to take up and cancel mortgage loans existing at Karl Romer’s death. But as to the additional loans represented by said two mortgages, advanced as aforesaid for the payment of general claims, it is claimed that the mortgage of the Alms & Deopke Company has priority.

We must be content in this decision to thus briefly state the issue that* we are called upon to decide, and more briefly state the conclusion which we have reached.

The mortgage deed, given to the Alms & Doepke Company as aforesaid, in addition to the usual provisions contains the following recital:

“It being understood and agreed that the Alms & Doepke Co. by the acceptance of this mortgage does not admit the priority of said mortgages of the Southern Ohio Savings Bank Company and the Western & Southern Life Insurance Company, except in so far as the two mortgages were given to take up mortgages made by said Karl Romer in his lifetime.”

And it also names the following consideration:

“In consideration of one dollar to them in hand paid by the Alms & Doepke Company, and in further consideration of the Alms & Doepke Company forbearing to proceed against said real estate of Karl Romer, deceased, to satisfy said claim, as hereinafter provided, and for other good and valuable considerations,” etc.

The amount secured by this mortgage, to-wit, $4,581.17, was made payable in three annual equal installments due in one, two and three years from date, respectively.

It is earnestly contended by the attorneys for the prior mortgagees that by extending the time of payment of its claim, and the acceptance of the mortgage and by forbearing to press its claim', for collection, the Alms & Doepke Company has waived the priority which the law gives to its claim, and is es-topped to assert such priority as against the two mortgages which are prior in point of time of execution and record.

We take it as elementary that there can be no waiver of a right unless same is expressed by word or in writing, or unless the acts and conduct of the party have been such that a waiver will be presumed. It is not claimed that there has been any express waiver on the part of the Alms & Doepke Company, but a great deal has been said in argument and by brief in support of the latter alternative, viz., that the waiver is to be presumed in this ease by the acceptance of the mortgage and extension of time of payment, etc., provided therein.

Numerous cases are cited by counsel on both sides to show when and under what circumstances a waiver is or is not to be presumed. These cases have been examined, together with other authorities upon the subject, and we have yet to see a single ease where a court has declined to discuss the presumption or non-presumption of a waiver, or the question of estoppel, where the instrument in question, or the language used, contained statements expressly disclaiming any intention to waive, as does this Alms & Doepke Company mortgage.

It might well be contended as between the parties to this mortgage, that the mortgagee has by its acceptance delayed its right to enforce its claim or lien. In fact, the language of the instrument, as above quoted, shows that the Alms & Doepke Company was to forbear in the enforcement of its claim. This only draws our attention to the distinction between the right of a lien, and the right of enforcement of a lien. The latter question is not involved in this case. All of the lien holders were brought into this partition proceeding as defendants and have filed answers asking for the protection of their rights. The nature of the proceeding and the consequent partition of the property requires a satisfaction of these liens. The action was brought by one of the very persons in whose favor the Alms & Doepke Company agreed to forbear and neither she nor any of her co-mortgagors are complaining or interposing any objection to the priority claimed by the Alms & Doepke Company.

In conclusion we will only state that we can not see how these other mortgagees can be heard to complain or to claim any right or benefit to be derived by reason of a subsequent transaction about which they knew nothing, and to which they were not parties. The parties to the Alms & Doepke mortgage all expressly agreed that no right of the company should be deemed waived thereby. We find no authority that will enable the insurance company or the savings bank company to derive any benefit or occupy any better position by reason of this transaction. It must be conceded that it was not within the power of the parties to the Alms & Doepke mortgage to impair the rights of the other mortgagees. -ITow, then, can it be maintained that the transaction .could inure to their benefit? We are of the opinion that the purpose of the Alms & Doepke mortgage was to induce the company to forbear to proceed against the real estate. That agreement and that purpose in no way affected the rights of the other mortgagees. Any intention to waive was expressly disclaimed.

So far as the mortgages given to the savings bank company and the insurance company cover moneys not used for taking up decedent’s mortgages, they are held to be inferior and subject to the Alms & Doepke mortgage.


author: Metcalfe, J.

text:
    ACTION AGAINST COUNTY COMMISSIONERS ON ACCOUNT OF DEFECT IN HIGHWAY.
    Circuit Court of Guernsey County.
    Guernsey County Commissioners v. Samuel Black.

    Decided, November 13, 1911.

      Constitutional Law — Validity of Act Permitting Impanneling from Adjoining County in Action Against County Commissioners — Actual Notice of Defect in Highway — Not Necessary to Render County Commissioners Liable — Lack of Funds to Repair Defect in Highway a Matter of Defense — Not Negligence to Drive on Edge of Macadamised Road.

    1. Section 11418-1, as amended (102 O. L., 41), permitting a jury to be drawn from an adjoining county in an action against the county commissioners, is a constitutional enactment and applies to a suit brought before its passage, there being no vested right in a remedy.
    2.i Actual notice of a defect in a highway is not necessary to establish liability against county commissioners in an action for injuries suffered because of such defect, if constructive notice of such defect is shown.
    3. While lack of funds with which to repair a highway may be made a matter of defense in an action against the county commissioners for injuries, it is defensive matter only and the petition need not aver that funds were available for repair of the defect.
    4. A person traveling along a highway is not chargeable with contributory negligence in permitting the wheels of one side of his vehicle to get just outside of the macadamized part of the road, where a hole existed into which the wheels dropped causing the accident complained of.

      G. F. Sheppard, lor plaintiff in error.

      J. S. Black, contra.

       Affirmed without opinion, Guernsey County Commissioners v. Black, 88 Ohio State, 587.

   Metcalfe, J.

This action was brought to recover damages claimed to have been suffered by the defendant in error — plaintiff below — by reason of a defect in the highway known as the National Road. Mr. Black recovered a judgment in the common pleas court, and error is here prosecuted. Several grounds of error are alleged:

First, it is claimed that there is no liability on the part of the commissioners, as shown by the petition; the verdict is against the weight of the evidence; that the law under which the jury was drawn, and the case tried, is unconstitutional, and that there is error in the charge of the .court.

In the limited time that I have I can not discuss these questions to any great extent, but will only call the attention of counsel to the points that we think are decisive. Whether or not there was any liability on the part of the commissioners as shown by the facts stated in the petition, is a question that this court has passed upon once, and we do not feel at this time that we are called upon to reverse the decision that was made at that time, and that is all that we care to say upon that question. See Blacky. Guernsey County Commissioners, 13 C.C.(N.S.), 252.

Is the law (General Code, 11418-1, amended 102 O. L., 41) under which the jury was drawn in this case unconstitutional? The law provides that where the county commissioners and some other officers which are named are parties to an action, a jury may be drawn from another county, and that was done in this case, the jury having been drawn from Muskingum county. We think, without entering upon a discussion of that question, that the Supreme Court has settled it in Snell v. Railway, 60 Ohio St., 256, in which the law authorizing a change of venue in cases where a corporation having more than fifty stockholders resident of the county is a party, settles that question. We think that case is decisive of the constitutionalicy of this law, and it is not necessary to discuss it more.

Counsel still say, however, that in the event the law is constitutional, it should not apply here because it was passed after this case was commenced; that they have a vested right in the remedy which was in force at the time — that is, which was provided for by the statute at the time the action was commenced. Impanneling a jury is part of the procedure by which the machinery of justice moves. It relates only to the method by which the remedy is administered. By changing it the right of a party to sue or defend is not affected. Ilis substantial rights are not changed. We think a party can not acquire a vested right in a remedy, or any part of it. Lawrence Ry. v. Mahoning County Commissioners, 35 Ohio St., 1; Templeton v. Kraner, 24 Ohio St., 554, 563; Rairden v. Holden, 15 Ohio St., 207, 211.

It is claimed also that the court erred in its refusal to charge a request which was offered on the part of the defendant, in which — without stopping to read it all — the court is asked to charge the jury that if they found that there was a defect in the highway, and that that was the proximate cause of the accident, still they would not be liable unless the jury also found that the commissioners had actual notice of the defect. We do not think that states the law. An actual notice was not absolutely necessary. The facts and circumstances might be of such a character that the commissioners might be required to take notice, although they did not have actual notice. I observe, however, in going through the charge that this request is substantially given in the charge, so that there would be no error in failing to give it, anyway.

Again, it is urged that there must have been an allegation in the petition in this case that the commissioners had funds in the treasury, and at their disposal, with which to make repairs upon this road. We do not have any doubt, after having consulted the authorities upon that question, that the fact that the commissioners had no funds with which to make repairs upon the road, or had no means of procuring funds, is a defense to a cause of action arising out of an accident for failure to repair a country road. But when the plaintiff states his cause of action must he allege that the commissioners, or the proper officers, have provided and have under their control sufficient funds to meet the necessary repairs, or is it a defense ? In our judgment it is a defense, and must be plead and proved by the commissioners. And upon this question we call the attention of counsel, as sustaining that proposition, to Hover v. Barkhoof, 44 N. Y., 113, 118, in an action similar to this. The same doctrine is also held in Hines v. Lockport, 50 N. Y., 236, and counsel will find a collection of the authorities in 15 Am. & Eng. Enc. Law (2d .Ed.), 412, upon that question.

The question in this ease which bothers us the most, and which we had given the most consideration, is whether or not upon the evidence in this case the plaintiff is entitled to recover. It appears that Mr. Black was driving upon the highway, and driving a horse that was somewhat restive, and he met an automobile. He raised his hand to the driver of the automobile to stop, and he did stop upon the north side of the highway. Something like 200 feet beyond where the automobile stopped, and in the direction which Mr. Black was going, there was this defect in the^ highway; and it is shown that there was a substantial defect there; where the culvert had crossed the highway, and outside of the traveled part of the highway, but in the graded part, it had fallen down, and there was a hole. He drove on; and when he passed the automobile he passed upon the south side of the road, but afterwards drove upon the north side. He says his horse was under control at the time. He passed along upon the north side of the road, either his horse very close to the side of the macadam — perhaps in the wheel track, or his right wheel in the wheel track — at any rate, very close to it, when the left wheel of the buggy went into this culvert, and he was pitched out and received some injuries.

Now, in a case of this bind it is urged that the rule that where a party departs from the known safe path, and takes another path, and is injured, that he must stand the consequences of his injuries. But where you are upon a traveled road what is the safe path? Is it simply a path — a roadway eight or ten or fifteen feet wide, as the case may be, upon which are the wagon tracks, or wheel tracks, that are made by continuous travel; and if you get a foot or a foot and a half outside of that are you guilty of contributory negligence? And that is the question here..

Now, this man, Mr. Black, was very close, evidently — very close to the traveled part of the highway, and the wheels upon one side of his buggy were only off from it when he went into this hole. Under such circumstances we do not feel we can say he was guilty of contributory negligence; and under the evidence and the law of the case we are inclined to think that the judgment should be affirmed, and that is the judgment of .this court.

Pollock, J., and Norris, J.; concur.


author: Kinkade, J.

text:
    PRESUMPTION OF LEGALITY OF PAYMENTS BY MUNICIPALITY FOR. NECESSARY SERVICES.
    Court of Appeals for Huron County.
    City of Norwalk v. R. L. Christian.
    Decided, April 15, 1916.

      Municipal Corporations — Payments to City Cleric for Serving Notices of Improvements — Bills of Exceptions — Failure to Use Language Showing That all the Evidence is Incorporated Therein — Careless Use of the Word “Testimony” in the Place of “Evidence.”

    In the absence of any allegation of fraud or collusion, a presumption arises, that payments made by a municipality for services were regular and duly authorized, and where the payments were such as the city should have made and the persons receiving them were fairly entitled to what they received, an action can not be maintained by the city for recovery back of the amounts so paid, on the bare allegation that no ordinance “appears” to have authorized such payments.

      Edward C. Turner, Attorney-General, B. D. Wickham, and Charles Follett, for plaintiff in error.

      L. W. Wickham, contra.
   Kinkade, J.

Tbe city brought an action in the justice court to recover the sum of $70, being the amount of certain fees paid by the city to the clerk of the council for serving improvement notices. The petition is based upon a report filed by the bureau of inspection and supervision of public offices, with the state auditor. It sets forth the portion of the report so filed showing amounts due that aggregate the amount claimed in the petition. In this report set out in the petition is found the statement that “The records of the council do not show that council ever fixed any compensation for serving notices, and in the absence of an ordinance or resolution passed by'the council under Section 4214, G. 0., fixing the compensation, the mere fact, that appropriations have been made does not comply with the requirements of the law as provided by said section. ’ ’ A demurrer was filed to this petition, which was overruled, after which an answer was filed by the defendant, admitting that the plaintiff is a municipal corporation, and that the defendant during the time covered in the petition was the duly elected, qualified and acting clerk of the city of Norwalk, and denying all other allegations. On the trial of the case, over objection of counsel for the defendant, the report of the bureau of accounts was offered in evidence, and thereupon the auditor of the city was called and examined as a witness, whereupon the plaintiff rested its case. On motion of the defendant the court directed the jury to return a verdict in favor of the defendant. This action of the court is assigned as error. The case has been very fully presented on both sides by briefs.

We find no statement in the bill of exceptions that the bill contains all the evidence. The statement at the beginning of the bill is as follows: “The plaintiff to maintain the issues on its part to be maintained called the following witness and offered the following testimony, all of which is hereinafter fully set out.” It will be observed that this statement only goes to the length of stating that the bill contains the testimony that the bill contains. It does not say that it contains all the testimony that was offered at the trial. It would have been quite evident without a statement at all, that the bill contains what it does contain, and that is all that is said by the statement quoted. It has been several times held by this court that the use of the word “testimony” in this connection is not sufficient. The word “testimony” has reference to the oral testimony of witnesses on the stand. The word “evidence” is of much broader significance and includes the testimony of witnesses and all other evidence in whatever form offered in the case. This statement in the bill would be quite insufficient if it said that it contained all the testimony, which it does not. It is more insufficient in failing to state, as it does, that it contains all the evidence. This being the state of the record, we might content ourselves with affirming the judgment on the authority of Regan v. McHugh, 78 Ohio St., 326, which squarely holds that a reviewing court can not reverse a judgment entered upon a verdict directed by tbe trial court, unless there is brought to the reviewing court all the evidence upon which such directed verdict was returned and judgment entered. Manifestly this decision was based upon the fact that every presumption of reguarity and validity attends the judgment of the trial court and the burden is carried by the plaintiff in error to show that the judgment is erroneous. If there may have been before the trial court such evidence as entirely justified the court in directing a verdict for the defendant, the reviewing court must presume, in the absence of a bill containing all the evidence, that such evidence was before the trial court.

We think, however, it is not necessary to rest the decision in this case upon the ground mentioned, alone. This was an action on the part of the city to recover money that had been paid to the clerk of the council for the serving of notices and the payments were made by the city treasurer upon warrants issued by the city auditor. It is said that the petition makes a prima facie showing that the council had not, prior to the time of the payment, passed an ordinance or adopted a resolution fixing the compensation to be paid to the clerk of the council for the serving of the notices in question, and that consequently the payment of compensation for the service mentioned was unauthorized by law. It is not stated in the petition, nor claimed in the brief, that the service was not performed, or that the amounts paid therefor were unreasonable, or that any fraud or bad faith was indulged in either by the auditor in issuing the warrant, or the treasurer in paying the same, or the clerk of the council in receiving the money upon the warrant. The sum total of the claim on the part of the plaintiff, even giving the language used the fullest scope that can be be claimed for it, is that the council had not, prior to the time of the payment, fixed by either ordinance or resolution the compensation to he paid. The fact is that the report of the bureau of supervision does not quite state this, but only states that the record fails to show any ordinance or resolution fixing the compensation; but, even conceding the language to have the scope that I have mentioned, the petition falls very far short of stating as a fact, even when aided by the provisions of Section 286-1, G. C., that the council did not in fact authorize the payment of this amount to the clerk of the, council prior to the drawing of the warrant by the auditor and the making of the payment by the treasurer pursuant to the warrant. The fact of the performance of the service and the payment being admitted, and there being no charge of bad faith or fraud, the situation is at once attended by the presumption that the public officials, the auditor and the treasurer, discharged their duties in a legal way and paid out the money of the city only after having received authority of the council so to do. It is not claimed by counsel' for plaintiff that the city might not have legally paid the amounts in question to the clerk of the council for the service performed, had the city seen fit to fix in advance the amount of this compensation by ordinance or resolution of the council. We think the case falls squarely within the decision of the Supreme Court in State v. Fronizer, 77 Ohio St., 7.

The record clearly shows that the city has paid nothing but what it should have paid, and the defendant has received nothing but that which he was entitled to receive from the city, and, therefore, the verdict and judgment of the court of common pleas accomplished substantial justice and the judgment will be affirmed.

Richards, J., and Chittenden, J:, concur.


author: Wildman, J.:

text:
    AS TO LIABILITY FOR. INJURIES SUSTAINED BY A VOLUNTEER.
    Circuit Court of Lucas County.
    General Railway Signal Co. v. E. Valois, Administrator of the Estate of Vincent Toda.
    Decided, June 12, 1909.

      Volunteer — Measure of Duty as to Safety — Owing to a Volunteer by One Galling for Sis Assistance — Assumption of Risk — Negligence of the Master or of Sis Servants — No Contract Relation — Motive of Volunteer — Must Take the Situation as Se Finds it — Ordinary Care in Furnishing Appliances Which Are Reasonably Safe — Charge of Court,

    One who calls for and procures the gratuitous assistance of a volunteer does not owe him the duty of exercising ordinary care in the furnishing of proper tools or a safe place to work; hut where the volunteer is serving a purpose of his own or of his master in complying with the request for help, he is entitled to the exercise of ordinary care on the part of the one calling him or his servants.

      Smith ¡& Baker, for plaintiff in error.

      Stephen Brophy, contra.
    Kinkade, J.
    In this case, in which there was a judgment for the plaintiff in the court of common pleas, the plaintiff in error assigned for consideration a large number of errors, and passing for the present the errors assigned with reference to the admitting of testimony, we take up the errors to which our attention is called in the request to charge, given before argument, and in the general charge of the court. And I may say at this time that this is' a case to which we have given a great deal of attention. We were cited to the ease, by the defendant in error, of Railway Company v. Marsh, a decision of our own Supreme Court, 63 O. S., page 236, and it may be said that the record in the case at bar justifies the most careful study of the case of Railway

      Company v. Marsh. There are many cases similar to this from other states that we have also examined in connection with onr careful reading of the Marsh case. Taking up the errors as I have mentioned in the request to charge, plaintiff asked and had given before argument requests Nos. 3, 1, 6 and 2, and exception was taken to the giving of 3, 1, 6 and 4, as appears by the bill of exceptions, which leaves No. 2 as unexcepted to although it was argued here as incorrect; and it is finally stated on the receords that the defendant excepts to 3, I, 6 and 4 instead of 3,1, 6 and 2. It seems that throughout this ease the court treated the case as if the railway signal company owed to Vincent Toda every duty that it owed one of its employees, and even more in one sense, for the court held, and the Marsh case justifies the holding, that the railway signal company could not escape liability if the negligence from which the injury arose was the negligence of one of its employees, who would have been a fellow-servant had Toda been in its employ. But aside from this, the court states the law as fully as it could be stated if Toda had been in the signal company’s employ, in this No. 3, which reads as follows:
    "3. If the jury finds from the evidence that the decedent, Vincent Toda, was in the employ of the Toledo Railways & Light Company upon April 10, 1907, and was directed by said company or its agents in charge of said Toda to assist in preparing and placing concrete at the base of a pole which the defendant had undertaken to erect for said Railways & Light Company, and should you further find that there was a foreman of the General Railway Signal Co., the defendant herein, in charge of and carrying on said work for the defendant, and that said foreman had authority to employ servants, and said foreman requested said Toda to assist in raising said pole, and if such assistance was apparently necessary, or if there was an actual necessity for him to assist in raising said pole, and if you further find that in response to said request said Toda did assist in so doing, and was thereby furthering or expediting the work of the Toledo Railways & Light Company, and in so assisting was injured by the carelessness or negligence of the foreman of the General Railway Signal Co., or any of defendant’s servants engaged in raising said pole, which proximately caused his death, then you are instructed that the said Toda did not assume the xdsk of any negligence on the part of the servants of the defendaxxt company, if there was negligence, and did not assume the risk of said work being done with appliances that were not suited to doing said work, should you find that said appliances were not suitable to carrying on said work, unless decedent Toda knew that said appliances were not suitable to carrying on said work, or knew of the negligence of the foreman and servants of the defendant.”
    We think this request as given is faulty in this regard, that it does not state, in addition to stating that Toda did not know, that Toda would not have known of the existence of these things by the exercise of ordinary care, and we think it is further faulty in this regard, that it charges the employer with the duty of seeing and knowing that the appliances with which Toda was invited to work were in an ordinarily safe condition for him to work with. It charges him with that duty, and we think he does not hold that duty, and that in that, regard the charge is defective.
    Request No. 1 (which follows) reads very much as the other request and I will not repeat it down to a given point, taking it up where he says that:
    “If there was an actual necessity for him to assist in raising said pole, and if you further find that in response to said request, said Toda did assist in so doing and was thereby furthering and expediting the work of said Railways & Light Company, and in so assisting was injured by the carelessness or negligence of the foreman of General Railway Signal Company or any of defendant’s servants engaged in raising said pole, .which proximately caused his death without fault on his part, and that decedent did not assume the risk, then you are instructed that the defendant is liable in this action for any and all pecuniary damages which you find the decedent’s wife and children have suffered by reason of his death.”
    We think this request is faulty in this regard, that it makes the railway signal company liable if there was any negligence, regardless of its degree, on the part of those assisting the foreman. The language is, “Was injtired by thé carelessness or negligence of the foreman of the General Railway Signal Company or any of defendant’s servants engaged in raising said pole.” This request would cover as it stands the slightest negligence. The parties might be exercising ordinary care in the fullest extent that the situation demanded and still be liable because they were guilty of some slight negligence.
    My attention is called to a fact by Judge Wildman that had escaped me for the moment, that this is a request given before argument, and up to this time the court had not defined ordinary care or negligence. And this request we thinik is faulty in another regard, in that it submits to the jury the question of whether Toda did or did not assume the risk. If the facts are admitted, it is a question of law whether he assumed the risk, and if the facts are not admitted, it is for the jury to find the facts under proper instructions from the court. It is hot for the jury to determine whether he did or did not assume the risk.
    We think that request No. 6, that was excepted to, might be in better form than it is, but we are not disposed to hold that request No. 6 constitutes prejudicial error in this case.
    Passing now to the general charge, there was an exception to the language used by the court on page 93, as follows:
    “If the deceased, Toda, sustained the injuries which later caused his death by reason of the failure of the defendant, General Railway Signal Company, to exercise ordinary care in the furnishing of machinery or appliances for the erection of the pole, or if its servants failed to exercise ordinary care in the operation of raising the pole at the time Toda was hurt, and he himself was exercising 'ordinary care upon his part to avoid, injury at the time that he was injured, the plaintiff, the administrator of Toda, is entitled to recover in this action. ’ ’
    This presents perhaps clearer than any other portion of the charge, the'question as to the right of a volunteer, who is not, strictly speaking, a volunteer, because he has some purpose of his own to serve, as mentioned in the Marsh case, to have the. master exercise ordinary care to furnish him a reasonably safe place to work and reasonably safe appliances with which to work, and holds the master liable whether he knows the appliances are defective or not, in ease they turn out to be defective. We think this portion of the charge is erroneous in this regard. We think a correct statement of the rule might be as follows:

      “One who calls for and procures the services of a volunteer, gratuitously, does not owe him the duty to exercise ordinary care in furnishing a reasonably safe place or safe tools. * * * The duty in this respect is not the same as that of an employer to a servant. The volunteer is under no obligation to render the services solicited; he has no contract relation at all with the party who calls him, and he may serve or not serve as he pleases. In ease a volunteer is serving a purpose of his own or his master in complying with the requests, then he is entitled to the exercise of ordinary care on the part of the party calling him, and also on the part of the servants of the party calling him, in anything they may do in connection with the voluntary service.”
    We have examined a great many cases on this subject. It has given us no little concern, and we have been aided very materially by the briefs that have been furnished by the counsel in this case. The brief of counsel for defendant in error is especially helpful in the examination of this ease, and after examining a very large number of authorities we are satisfied that a volunteer, even though having some purpose of his own to serve, as the boy lighting the lamp had in the Mkrsh case, receiving pay from the agent, still he must take the situation as it is, as he finds it. We see no reason why a man may not ask a volunteer to aid him in something that is in itself unquestionably hazardous, and it may be that in aiding him the volunteer is serving some purpose of his own, and it certainly can not be the law that the moment the volunteer steps to the aid of the man who calls him, a duty springs into being' to make the situation which is obviously surrounded by danger reasonably safe for the volunteer to act in. A man may be called by another to aid him, if he sees fit, in stopping a runaway horse, as dangerous an occupation as he could be engaged in, probably, and the man who aids him may have some purpose of his own in aiding him, but because he volunteers it is not the law that the man who asks him must immediately put the thing in a safe position for the volunteer to act, because it may not be possible to do so. It is very dangerous throughout, and bound to be dangerous, and the volunteer must assume it to that extent. It is a peculiar doctrine that a volunteer can hold liable one whose servant asks him to come, merely because he is receiving some pay for coming from some servant of the man who called him, without the knowledge of the real employer himself, but that is the holding in the Marsh case, and it is very clearly stated, and, as I have said before, we have considered this Marsh case with great care.
    The next point in the charge to which exception is taken is found on p'age 94, and we think this is one of the serious things in this case. The language is:
    “It was the duty of the Railway Signal Co., in the first instance, to adopt and furnish such machinery and appliances for the erection of the poles as would be reasonably safe for the carrying on of the work. They are not guarantors of the safety of Toda, and were not required to furnish the latest or most improved appliances for the purpose, but were required to furnish such appliances as an ordinarily prudent person would customarily employ in a like enterprise. It was also the duty of the company, after having adopted such appliances, if you find that it did so, to so use the appliances adopted by it through its servants and employees as to make reasonably safe the performance of the work of erecting the pole by those engaged therein, and not to expose them to any greater danger while engaged in the work than the nature of the work itself would ordinarily involve, and which was necessarily incident to the performance of such work in an ordinarily prudent manner.”
    The first thing that we note is wrong with this language is that it is squarely at variance with a very recent decision of the Supreme Court, to the effect that the duty of a master is not to make the place reasonably safe for the servants, or to furnish appliances that are reasonably safe for his use, but it is to exercise ordinary care to make the place reasonably safe and to furnish appliances reasonably safe. That is the duty relative to employees, and we can not see why the duty should be any higher relative to a volunteer, who may or may not come as he sees fit. We think this portion of the charge is clearly erroneous. And on account of the. errors in the charge to which we have called attention, we think this case must be reversed.
    One request was tendered by the defendant in error that the court under the testimony should instruct the jury to return a verdict fQr the defendant. After a full consideration of all of the cases, we are inclined to say that were it not for the case of Railway Company v. Marsh, we would be disposed to hold that it would have been the duty of the court to have so directed, but of course the court could not direct under the evidence in this case with the Marsh decision standing as it does.
    This brings us now to the errors that our attention has been called to relative to the admission of evidence, and they relate to evidence concerning the number of men necessary to erect the pole, and what was proper to be done, and expert, evidence on this subject, etc. There was a general objection put in, with the consent of the court, to all this class of evidence, and an exception taken to its admission. The plaintiff in the action below sought to prove that the method by which this work was done was not correct, and to prove by expert testimony that it was not correct, and to prove that the number of men were not sufficient. We agree with the contention in the argument here of counsel for plaintiff in error that the number of men employed in this situation seems to have had nothing to do with the case at all. There were men enough employed to raise the pole; otherwise it never could have been raised. After the pole was raised a prop was placed under it, any one who reads this record will at once discover that the cause of the accident here was the improper placing of the prop by one, perhaps, who would have been a fellow-servant of Toda had Toda been in the employ of the railway signal company. But the difficulty is that Toda was not in the employ of the railway signal company. We will say this concerning all of this evidence that was admitted touching this feature of the case, that it is our opinion that this class of evidence should have been excluded. For the errors that I have mentioned the judgment of the court of common pleas will have to be reversed.
    Mr. Brophy : Is there an assumption of risk in this ease ?
    Kinkade, J.: We will answer that this way, that the volunteer, Toda, did not assume the risk of the negligence of the man who called him or his assistants or his employees, the active negligenee of tbe men. We think he did assume the risk that is in.cident to the appliances with which he worked. We think the Marsh case protects him against the negligence of the man calling him and against the negligence of the servants of the man calling him in their active participation in the work to assist in the doing of which he was called.
   Wildman, J.:

He did not assume the risk in the sense that a person assumes it by a contract of employment between master and servant, but assumed it something in the same sense that a person walking over a defective sidewalk assumes the risk, if he knows the danger or ought to see it, or ought to know it by the exercise of ordinary care. It does not grow out of contract.