text:
    INJURY TO EMPLOYE WHILE EATING HIS DINNER ON THE PREMISES.
    Circuit Court of Belmont County.
    Carnegie Steel Company v. Patrick Rowan.
    Decided, May Term, 1907.

      Master and Servant — Negligence—-Fellow-Servant—Privilege to Employes — .Resulting Advantage to Master — Continuance of Ms Liability for Safety of Ms Men — ■Distinction between Licensees and Those Acting by Invitation.

    A corporation, permitting its servants for a number of years habitually to use a building on the premises as a place to deposit their dinner pails while at work and in which to eat their dinner, owes such servants the duty not to injure them by its negligence while they are using the building in the customary manner; and if a servant is injured while eating his' dinner there, through the want of ordinary care on the part of the corporation, it is liable, although the building is used for other" purposes, and although the servant would not have been injured had he remained at his usual place of work.
    Cook, J.; Burrows, J., and Laubie, J., concur.
    Error to Belmont Common Pleas Court.
   Plaintiff! in error was engaged in the manufacture of steel and in connection with its works had several blast furnaces. In a blast furnace there are a number of water blocks inserted for the purpose of keeping the walls of the furnace as cool as possible. In this furnace there were at least two hundred of these blocks. The blocks are made of a certain character of bronze metal adapted to the purpose, and are about twenty-six inches long, oblong in shape corresponding with the outside of the wall, extending through the wall twenty-seven inches, tapering to what is called the nose, and are five or six inches deep. These blocks are at the lower part of the furnace where the heat is most intense, and run around the furnace in rows, one above the other. They are connected together so that the water circulates freely through all of them from a tank located considerably higher than the blocks and finally emptying into a well in the ground.

Defendant in error, Rowan, was employed by the company to mix clay which was used about the different furnaces; and his box at which he worked was from seventy-five to a hundred feet from the furnace when the accident occurred. He had nothing to do with the working or operation of the furnace.

For two or three days before the accident it had been observed by the superintendent and men connected with the operation of the furnace that one of the boxes had become impaired and was leaking, but not to such extent as to require immediate removal.

A water block is ordinarily removed during a cast, when the blast is off, and the pressure is reduced .to the minimum.

The evening before the accident the .superintendent gave notice to his men in charge of the furnace to prepare the impaired block for removal, and the men did so during the night by removing the casing all around the block, which is made of cement about one-half inch thick, to a depth of ten inches into the wall. Casts are made at three, six, nine and twelve o’clock in the first half of the day and at the same time in the last half. The superintendent came at eight o’clock in the morning and it was his intention to remove the block at the nine o’clock cast but he changed the time to twelve for the reason, as claimed, that some difficulty had arisen in the water appliance and that the water was not circulating as freely through the blocks as it should do. After the nine o’clock cast was made the supply of water became more impaired and.at twelve o’clock the blocks became considerably overheated. After the cast was made at twelve o’clock, which lasted some forty-five minutes, the blast was again put on, perhaps inadvertently, as it was evidently the intention of the superintendent to remove the block at the twelve o’clock cast.

Soon after the blast was put on, a very short time, it was observed that this block had become very much overheated, indeed red hot, and before the engine could be stopped and the blast taken off the block was forced from its place and the hot metal was forced through the aperture, striking a small building, which was about twenty feet away, in which Rowan and others were finishing their dinner, whereby all of them were badly burned, including a man by the name of Lowe; Rowan’s injuries being very serious. This building in which Rowan had just finished eating his dinner was about sixty feet from the box at which he worked and the box was not at all in line with the escaping metal, and if he had been at his box or close to it he would not have been injured. The building was a small frame structure twenty-eight by twelve feet and was used for different purposes, primarily, however, for storing clay, keeping it warm and pliable, so that it would be ready for use at any time. A stove was in the center of the building and the clay was in one end. At the other end and around the sides up to the stove benches had been placed by the men who used them while eating their dinners; also nails had been driven in the walls on which the men hung their clothes while at work; also'their dinner pails were left there.

The employes had been in the habit, of using this building in which to eat their dinners when the weather was inclement for fifteen or twenty years, and Rowan had been in the habit of eating his dinner there for a long time as the company’s agents well knew — the superintendent of the furnaces frequently eating his dinner there. There were other buildings of a similar character scattered- through the premises of the company which were used by other employes in a similar manner. There were about fifteen hundred employes of the company and nearly two-thirds, or one thousand, ate their dinners on the premises. The employes were allowed fifty minutes to get their dinners at noon hour. The day Rowan was injured was in January and the weather very inclement.

The verdict and judgment below was against plaintiff in error and it is now sought to reverse the judgment upon two grounds:

First. , The verdict is against the evidence.

Second. There was error in the charge of the court.

It is claimed the verdict is against the evidence for two reasons. First, there was no negligence upon the part of defendant causing the injury; and, second, if there was, the negligence was the act of a fellow-servant. ■

In the ease of National Steel Co. v. Lowe, 127 Federal Reporter, 311 (United States Circuit Court of Appeals), arising out of the same accident, the question of the negligence of the company and also the question whether or not the rule of fellow-servant applied were fully considered, and it was in that case held:

“1. Plaintiff, a stove tender in defendant steel works, was burned by molten iron from a blast furnace, caused by a water block being forced from the wall of the furnace. The block had become defective on the evening of the previous day, and the superintendent ordered preparations made to remove it. That evening the packing was removed to a depth of nine or ten inches, and between 7 and 8 o ’clock the next morning the superintendent, though it had been his intention to remove the block when the blast was off the furnace during the 9 o’clock cast, on his being notified that the water was not running freely through the different blocks, by reason of the strainer being clogged, directed that the block should not be removed until 12 o’clock, and that the water strainer be repaired at the same time. Before noon, and while the blast was still on the furnace, and as certain workmen were preparing to pull out the block, the inside of which had become melted off by reason of the defect in the water apparatus, the block was suddenly forced from the wall by the pressure in the furnace, and plaintiff was burned by the flame and molten material issuing from the aperture. Held: That whether treated as a place at which to work or an appliance with which to work, it was the positive duty of the company to keep the furnace reasonably safe for its employes at work about it. For any neglect to do this, the company was responsible, as the duty could not be delegated.
“2. Whether the neglect was that of the superintendent or foreman, or a workman, in neither case was the person guilty of negligence a fellow-servant of the plaintiff, so as to relieve the company of responsibility.”

We have examined that case with care and we are content wjth the judgment and decision of the court, and that case makes it unnecessary to consider those questions further.

There is one question made in this case that was not made in the Lowe case and that is, the degree of care that was required, of the steel company toward Rowan at the time of the injury.

On behalf of the steel company it is claimed that Rowan at the time of his injury was not engaged in the business of the company; that he was a mere licensee and that it owed him no duty save and except it should not willfully injure him by its gross negligence; while upon the part of Rowan it is claimed that the company owed him the duty of ordinary care. This question is made in the requests of both parties and in the charge itself, the court taking the view that the company at the time of the injury owed Rowan the duty of exercising ordinary care, and charged the jury that although Rowan was in the building at his dinner at the time of the accident, and would not have been injured had he been at his clay box or close to it, yet the duty of exercising ordinary care devolved upon the steel company.

We think the trial judge was right in his instructions to the jury. As we have seen from the statement of facts this building had been used in the manner Rowan used it for a long number of years. It was suitable, convenient and reasonably necessary for the purpose of providing a place where the employes could eat their dinners in inclement weather. Rowan had been in the habit of eating his dinner there since he entered the employ of the company. All this was known to the officers and agents of the company. This certainly was an invitation to the employes to so use the building.

Tn the case of C., C. & St. L. R. Co. v. Martin, 39 N. E. R., 759, it was held:

“In an action against a railroad company for the death of an employe it appeared that deceased was employed to-work on the side-tracks of defendant, at a point near which defendant had a pump house, and that it was the custom of defendant’s employes at work at that point to eat their dinners in the house, it being the only place in which they could keep warm. The time given deceased for his dinner was so short that he was unable to go home, and defendant never objected to its employes using the pump house during dinner time. Deceased, while eating his dinner in the pump house on a very cold day, was killed by an escape of steam, resulting from defects in a boiler in the house. Held: That defendant was liable.”

In the opinion the question of mere license and invitation is fully discussed, and it is clearly shown that the appellant was not a licensee but was at the pump house by invitation.

In the case of Taylor v. George W. Bush & Sons Co., 61 Atlantic Reporter, 236, it was held:

“1. A day laborer who, by virtue of his employment, is permitted to carry his dinner to his work, and eat it on his employer’s premises during the noon hour, and leaves his pail on the premises until the day’s work is done, continues to occupy towards his employer the relation of a servant on going to get his pail at the close of the day, although his day’s work is then done, and he has received his clay’s pay.”

In the opinion it is said:

“It appears that the plaintiff, Lewis E. Taylor, on the day of the accident, was in the employ of the defendant company, and had been in their employ for about three months immediately preceding that day; that in the course of his employment, from day to day, he was in the habit of taking his dinner pail to the stable in the morning, eating his dinner on the premises at noontime, and, after the clay’s work was over, of taking his dinner pail away from the place where he had kept it during the day; that this privilege was incident to and connected with the employment, extended to him as an employe, and by that right he took his pail there, kept it there, and took it away from there at the close of each, day; that at the time of the accident he had been actually paid at the office for that day, and had gone, as wás his custom, to take home his dinner pail. He was therefore in the enjoyment of a privilege which was granted to him by his employers only as an employe. It was connected with and incident to his employment at the time of the accident, and the enjoyment of it therefore continued unbroken the relation of master and servant, at the time of the accident, between the plaintiff and the defendant company. ’ ’

These cases it seems to us fully support the charge of the court.

The ease of Pomponio v. New York, New Haven & Hartford River Railroad Company, 50 American State Reports, 124, is very much relied upon by counsel for the steel company. In that case it was held that the distinction between a mere licensee and a person upon premises by invitation was Whether the privilege of user exists for the common interests or mutual advantage of both parties. If it was', then it was by implied invitation: and it is claimed that the use of this building was of no advantage to the. steel company.

Can that be so? AVas it not to the advantage of the steel company for its employes to have a comfortable place on an inclement day in which to eat their dinners during the fifty minutes of noon hour. The company so understood it by permitting them to use the building, knowing their comfort would be subserved and their capacity for more and better work secured, saying nothing for the dictates of humanity.

But, conceding that Rowan was a mere licensee, would not the steel company be held to ordinary care in a ease of this character? This is not a case in which the premises were not kept safe; suffered to go to decay and injury resulted from such negative act. These men were in this building with the knowledge and consent of the company. There had been no revocation of the license, or notice given to not enter the building upon that day, and while there, by the active negligence of the company, Rowan was injured. The superintendent was there doing his work of removing the block and by his negligence, the block was blown out.

An owner of premises may permit a licensee to come upon his premises and travel over an excavation covered over and, if the plank rot out and the earth give way without his knowledge and the licensee while using the premises as he was accustomed to do, falls into the pit and is injured, the owner may not be responsible, but can he remove the plank and permit the excavation to remain open without revoking the license, or notice to the licensee, permit him to continue to use the premises without being responsible? We think not.

In the case of Pomponio v. New York, New Haven & Hartford River Railroad Company, 50 American State Reports, 124, referred to, it was held:

“AVith respect to the safety of the premises of a land owner, he owes a more limited duty to a mere licensee than he does to a person who is there by invitation, either express or implied; but owes to both the equal duty of not injuring either by his own active negligence and is liable if he does so.
“A railroad company, which has for years maintained a planked crossing upon its premises for the use of a manufacturing company having shops extending along either side of the railroad, is liable for its negligent act in switching its cars at the crossing, whereby a person, going to his work at one of the shops, after the noon intermission, is, without fault upon his part, struck and killed, whether he is upon the crossing as a licensee, or by implied invitation.”

In the opinion it is said:

“The defendant contends that the decedent was upon the crossing as a mere licensee, and, consequently, that its duty towards him was a more limited one than if he had been there upon implied invitation. As a general statement, it is undoubtedly true that a owner in charge of land owes a more limited duty to a mere licensee than he does to a party invited, in the technical sense of that word. A licensee must take the premises as he finds them, and the owner is not, as to him, bound to use care and diligence to keep the premises safe while he does owe such a duty to one using his premises upon invitation. ‘It has often been held that the owner of land, or a building, who has it in charge, is bound to be careful and diligent in keeping it safe for those who come there by his invitation, express or implied, but that he owes no such duty to those who come there for their own convenience, or as mere licensees’ (Plummer v. Dill, 156 Mass., 427; 32 Am. St. Rep., 463). This distinction between the case of a licensee and that of a party invited, in respect to the duty of keeping the premises safe for their use, is recognized in the following cases and in many others: Nicholson v. Erie Ry. Co., 41 N. Y., 525, 532; Barry v. New York, etc., R. R. Co., 92 N. Y., 289 (44 Am. Rep., 377) ; Byrne v. New York, etc., R. R. Co., 104 N. Y., 362 (58 Am. Rep., 512) ; Sweeny v. Old Colony, etc., R. R. Co., 10 Allen, 368 (87 Am. Dec., 644) ; Gordon v. Cummings, 152 Mass., 513 (23 Am. St. Rep., 846).
“But while this is so, it is also true that the landowner must not himself, by what has been called ‘his own active negligence,’ injure either the licensee or the party invited, while they are upon his land. This is a duty due to both equally. Toward both, in this respect, he is bound to exercise the same amount of care. Both are upon his premises, not as wrong-doers, but by his permission, and, in respect to the duty in question, we know of no good reason why the nature and extent of it should not be the same in cases of license as in cases of invitation. In a Massachusetts case it appeared that the plaintiff, being sent by his mother upon an errand, passed through a passageway ixpon the defendant’s premises, over a portion of which way a roof had been constructed; and that it was the defendant’s habit to supply ale to their workmen, who were accustomed to throw the empty kegs out of a window down upon this roof, from which from time to time the kegs were taken away. Just as the plaintiff, in going through the passageway, emerged from under this roof, one of the workmen threw a keg so carelessly that it fell off the roof and injured the plaintiff. It was held that the defendants were liable, and that it made no difference whether the way was public, and thus the plaintiff was traveling upon it as a matter of right, or whether it was private and he was traveling upon it merely by permission. The court said: ‘Even if he were there under a permission which they might at any time revoke, and under circumstances which did not make them responsible for any defect in the existing condition of the way, they were still liable for any negligent act of themselves or their servants which increased the danger of passing and, in fact, injured him. Corrigan v. Union Sugar Refinery, 98 Mass., 577 (96 Am. Dec., 685).
‘ ‘ In another Massachusetts case the court says: ‘ The licensor has, however, no right to create a new danger while the license continues: Oliver v. Worcester, 102 Mass., 489, 502 (3 Am. Rep., 485); Corrigan v. Union Sugar Refinery, 98 Mass., 577 (96 Am. Dec., 685); Corby v. Hill, 4 Con. B., N. S., 556). So a railroad company, which allows the public habitually to use a private crossing of its tracks, can not use active force against the person or vehicle crossing under a license, express or implied.’ Stevens v. Nichola, 155 Mass., 472, 475.
“In a New York case the court said: ‘There can be no doubt that the acquiescence of the defendant, for so long a time, in the crossing of the tracks by pedestrians, amounted to license and permission, by the defendant, to all persons to cross the tracks at this point. These circumstances impose a duty upon the defendant, in respect of persons using this crossing to exercise reasonable care in the movement of its trains. The company had a lawful right to use the tracks for its business, and could have withdrawn its permission to the public tó use its premises as a public way, assuming that no public right therein existed; but so long as they permitted the public use, it was chargeable with knowledge of the danger to human life from operating its trains at that point, and was bound to use such reasonable precaution in their management as ordinary prudence dictated to protect wayfarers from injury. * * * The ground of liability in this case is negligence, and the duty of the defendant to exercise reasonable care existed irrespective of the fact whether the plaintiff’s intestate had a fixed legal right to cross the track, or was there simply by the defendant’s implied permission.’ Barry v. New York, etc., R. R. Co., 92 N. Y., 289, 293 (44 Am. Rep., 377).”

Such we also understand to be the holding of our own Supreme Court: Harriman v. Railway Company, 45 O. S., 11; Railway Company v. Aller, 64 O. S., 183; Railroad Company v. Marsh, 63 O. S., 236; The Cincinnati, Hamilton & Dayton Railroad Co. v. Aller, 64 O. S., 183; The Cleveland, Akron & Columbus Railway Company v. Workman, Administrator, 66 O. S., 509-540.

In the case of Cincinnati, Hamilton & Dayton Railroad Co. v. Aller, supra, Judge Shauck, in the opinion on pages 193 and 194, says:

“But it is urged that in the circuit court it was thought, and rightly, that the judgment under review was required by the latter ease of Harriman v. Railway Co., 45 Ohio St., 11. Attention to the facts presented in the cases will show that in the legal view they are materially different. In the present case there has been a recovery because the end of the platform as it had been constructed six years before the accident and maintained without change, was not constructed or guarded so as to make it a safe way for footmen passing from the junction to the village, although such use was not within any invitation which the company extended to the public. While in Harriman v. Railway Co., the recovery was by one who was upon the ground of the company by permission only, the injury was not occasioned by any real or alleged defect in the construction of the road. The injury there resulted from the operation of the road. The doctrine of the ease is, that when the company became aware that 'persons were using the road for purposes of their own it became its duty, not to alter the construction of its road, but to operate it consistently with the facts thus known to it. It was held to be a violation of that duty to add new and further peril to such permitted use without taking precaution against injuries which would naturally result therefrom. Not only does such added peril from the operation of the road appear as a fact in the case, but in the syllabus it is stated as a ground of recovery; and in the opinion the question for decision is stated as follows: ‘An owner may, without protest or objection, permit his premises to be used by the public so' long, in the same condition, that his acquiescence in the continuation of such use, until some warning or notice on his part, might reasonably be expected; and if under such circumstances and with knowledge of the same, he should place or leave some new, dangerous structure or instrument in the way so used, and from which he might reasonably apprehend danger of injury, to those accustomed, to such use, can he claim exoneration from liability in ease such injury shall occur, on the ground that the law imposed no duty on him to keep his premises in a safe and suitable condition foi: trespassers and licensees who enter by permission only?’ ”

Tollman & Spriggs, for plaintiff in error.

Lynch, Eandland & Jones, for defendant in error.

Judgment of court of common pleas will be affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    ACTION IN TORT FOR. CONSPIRACY.
    Circuit Court of Cuyahoga County.
    Marcus Friedman et al v. Walter E. Myers, Trustee in Bankruptcy of Jacob Protter.
    Decided, December 9, 1907.

      Bankruptcy — Title of the Trustee — Actions which he may Maintain — • Conspiracy — Pleading.
    A trustee in bankruptcy can not maintain an action in tort for conspiracy in assisting a bankrupt to place his property beyond the reach of his creditors, against persons who are alleged to have performed their acts of conspiracy during the pendency of the bankruptcy proceedings but before the adjudication therein, where no allegation is made that any of the defendants received any portion of the bankrupt’s estate, and the sole result of the conspiracy is to turn the bankrupt’s property into money in his hands which he himself failed to account for to his trustee.
    Winch, J.; Henry, J., and Marvin, J., concur.
    Error to the court of common pleas.
   This was an action in tort, the defendant in error being plaintiff below. His petition sets forth the fact that he was the duly appointed trustee in bankruptcy of one Jacob Protter, against whom proceedings in involuntary bankruptcy were begun by the filing of a petition on the part of three of his creditors on the 24th day of October, 1902, the said Protter being adjudicated a bankrupt on the 27th day of May, 1904, over a year and a half later. The petition sets forth at length a series of acts committed by the five defendants, S. S. Samuels, Adolph Eisenberg, Marcus Friedman, Louis Goodman and Simon A. Grossner in conspiracy with said Protter during the pendency of said bankruptcy proceedings, but all consummated before the adjudication, which are alleged to have been mere shams and devices to cover up goods of the value of $8,000 belonging to said Protter, and to place the same beyond the reach of his creditors, and to cheat and defraud said creditors of their just dues and damages. There is no allegation in the petition that said five named defendants received any part of said property nor that they have possession of any of it, though a suggestion is made that they were paid for their services in assisting in the scheme of concealing said property from the creditors of said Protter. The only inference to be drawn from the petition as to what became of the property, though that is not clearly stated, is that it was converted into money which Protter himself received.

A judgment is asked against the five conspirators in the sum of $8,000, the alleged value of the goods, which it is alleged, “by said wrongful acts of said defendants, in pursuance of said unlawful, wrongful and fraudulent purpose and conspiracy aforesaid, were diverted from the creditors of said Jacob Protter and from this plaintiff.”

To this petition a general demurrer was interposed, which, we think, should have been sustained, for the following reasons:

No right of action against the defendants and in favor of the bankrupt, which would pass to his trustee in bankruptcy, ever existed. The so-called conspirators could not have been sued by Protter, for the result of the conspiracy was to benefit him by getting all his property into money in his hands. If this is not clear, still the right of action, if any, sounds in tort, and such rights do not pass to the trustee. Under Section 70, paragraph 6 of the bankruptcy act the trustee is vested with the bankrupt’s “rights of action arising upon contract, or from the unlawful taking or detention of or injury to his property.” An action, ex delicto, for conspiracy, such as we have here, does not pass under the bankruptcy act to the trustee in bankruptcy. Citation of authorities on this point, and there are many of them, is not necessary, for the language of the act is clear.

'Nor can it be said that the acts complained of were committed against the trustee or his property, though they are alleged to have been committed during the progress of the proceedings in bankruptcy, for they were all consummated before the adjudication.

Under Section 70 of the act, the trustee is “vested by operation of law with the title of the bankrupt, as of the date he toas adjudged a bankrupt.” Such being the case, the acts complained of were committed before the trustee had any interest in the estate. Nor had he any lien upon the bankrupt’s property or special interest therein antedating the adjudication upon which he might base this action. The caveat, arising upon the filing of the petition in bankruptcy, as suggested in. the case of Mueller v. Nugent, 184 U. S., 1, has regard only to those causes of action which the act itself provides for, in Sections 67e, 70a (4) and 70s for the recovery of property of the debtor conveyed, transferred, assigned or encumbered in fraud of his creditors, or for the recovery of its value, from the person to whom it may have been transferred, or whoever may have received it.

By the sections referred to, the trustee is vested with the title to the property so transferred, as of date of the adjudication, and entitled to bring the actions mentioned, which are those of replevin and conversion, under which each fraudulent transferee would be liable for the value of the property to him transferred or by him received. The petition is not framed to bring it within the act, for there is no allegation that the defendants received any part of the property, and it seeks to hold them all jointly for the full value of the property of the bankrupt which it is alleged that they conspired to put beyond the reach of the creditors. As before stated, this action is strictly ex delicto, and we find no warrant in the bankruptcy act for its maintenance in any court by a trustee in bankruptcy, and without such warrant the action must fail, for no wrong was done the trustee, as such, nor his property.

Herman Preusser, P. J. Wing and A. Hahn, for plaintiffs in error.

White, Johnson, MeCaslin & Gannon and A. B. Thompson, for defendants in error.

This conclusion makes it unnecessary to examine the other errors complained of..

For error in overruling the demurrer to the petition the judgment is reversed and vacated, and the cause remanded to the court of common pleas with directions to sustain said demurrer.


text:
    BROKER’S COMMISSION FOR. FINDING A PURCHASER.
    Circuit Court of Guernsey County.
    Jennie Barber v. Stephen R. Heade.
    Decided, April Term, 1907.

      Contract with Broker — For Sale of Land — Purchaser Found — Tender of Agreed Amount Made — Commission Payadle Notwithstanding Offer to Purchase was not in Writing.

    When an owner contracts in writing with a broker to sell a parcel of land, and the broker secures a purchaser who oilers to take the land in accordance with such contract, and duly tenders the money to and demands a deed from the owner, such broker is entitled to his commission although no memorandum in writing of the contract between the broker and purchaser was signed by the purchaser.
    Cook, J.; Burrows, J., and Laubie, J., concur.
   Jennie Barber entered into a contract in writing, duly signed by her, by which she employed Stephen R. Heade to sell a parcel of land situated in the city of Cambridge. The contract provided :

“I agree that in the event of the sale of the property by S. R. Heade, agent, at the consideration of sixty-four hundred dollars, that I will make a good deed of general warranty to such grantee as shall be named by the said S. R. Heade, agent. Said option to expire within fifteen days. Said S. R. ITeade to receive a commission for his services in making the sale, the sum of one hundred and thirty dollars. ’ ’

S. R. Heade sold the land to Marrietta H. Keenan for the sum of sixty-four hundred dollars, but had no contract in writing with her or memorandum signed by her of said .sale. Within the fifteen days Marrietta II. Keenan went with S. R. Heade to the owner, Jennie Barber, and duly tendered her the purchase price, sixty-four hundred dollars in gold, and demanded a deed for the premises in accordance with the contract with her agent, S. R. Heáde, but she refused to make the same, stating she had concluded not to sell the premises. S. R. Heade demanded payment of his commission but she refused payment, and suit was brought for the same. The court below rendered judgment for the plaintiff for his commission.

Plaintiff in error defended below, solely upon the ground that defendant in error never secured a purchaser for the property, and makes that claim upon error as her only defense to the payment of the commission. Counsel insist that as no memorandum in writing had been signed by Marrietta IT. Keenan that there was no binding obligation upon her part to take the property and that although she was willing and anxious to take it, and duly tendered the purchase price, yet defendant in error was not entitled to his commission.

It is not necessary for us to consider the relative rights of Marrietta II. Keenan and plaintiff in error as to whether or not she could insist upon her purchase and compel plaintiff in error to fulfill her contract, although upon that question we have little doubt as the contract between plaintiff in error and defendant in error provided that Heade should sell the land.

Plaintiff in error was to make a sale of the land at a certain price and in a certain time. He did so, and went with the purchaser to plaintiff in error, who tendered the money and demanded the deed in accordance with her contract with Heade. It was no fault of the purchaser, or of plaintiff in error, that the contract was not completed. The contract between plaintiff in error and the purchaser through the agent was not void but only voidable (Jefferson v. Dallas et al, 20 O. S., 68). The purchaser did not see fit to avoid the contract but claimed its fulfillment, and, by so doing, made the obligation of plaintiff in error to pay defendant in error his commission absolute.

Troette & Baker, for plaintiff in error.

Robert T. Scott, for defendant in error

In the 44 Lawyers’ Reports Annotated, in the note on page 594, it is said:

“It has been held that there is no meritorious distinction between the ease of an agent undertaking to sell and one undertaking to find a purchaser, upon the ground that the agent in undertaking to sell must not alone find a purchaser but must place the parties in such a position that the sale may be enforced between them by law, for the reason that the broker in either ease is required to do no more than find a purchaser, and can not do the selling unless specifically authorized to do so by power of attorney, the undertaking to sell in such cases being no more than an engagement to find a purchaser who is ready and willing to buy (McFarland v. Lillard, 2 Ind. App., 160). To the same effect, Treat v. DeCelis, 41 Cal., 202; Duffy v. Hobson, 40 Cal., 240 (6 Am. Rep., 617) ; Goss v. Broom, 31 Minn., 484; Reynolds v. Tompkins, 23 W. Va., 229; Lockwood v. Rose, 125 Ind., 588.”

The judgment of the court of common pleas is affirmed.


text:
    PROSECUTION FOR. KEEPING A BUCKET SHOP.
    Circuit Court of Cuyahoga County.
    Robert E. Gill v. The State of Ohio.
    Decided, December 9, 1907.

      Criminal Laio — Indictment Charging Keeping a Bucket Shop — Not Sufficient, When — Word “Margin” not Essential to — Nature of the Contracts must be Defined — Inquiry of Customers as to their Intentions — Gravamen of the Offense — ■Evidence—Charge of Court— Error — Words and Phrases — Section 6!)$J¡a-l.

    1. An indictment charging one with keeping a bucket shop, which follows the language of the statute, but does not aver that the place was kept for the purpose of permitting the entering into of unlawful contracts, and does not define the nature and character of the contracts alleged to have been permitted to be entered into, is not insufficient.
    2. In such a case it is not error to charge that the keeper must show that the transactions admitted to have occurred were not prohibited by the statute.
    3. Where “buy slips” and “confirmation slips” which recite that it is the intention of the customers to receive and pay for stock pretended to be bought are introduced in evidence, it is not error to charge that such slips are not conclusive as against testimony of the customers and the conduct of the keeper given in evidence; nor is it error to charge under such evidence, that the fact that the defendant inquired of his customers as to their intentions, would not shield him from responsibility.
    4. The gravamen of the offense of keeping a bucket shop, as defined in Section 6934a-l, Revised Statutes, is in keeping- a place wherein is conducted or permitted the pretended buying and selling of stock, etc., on margin or otherwise, without intention on the part of the customers to receive or deliver the stocks.
    5. It is not prejudicial error in a bucket shop case to neglect to explain to the jury the meaning of the word “margin,” where there is no request that its meaning be defined. •
    Winch, J.; Henry, J., and Marvin, J., concur.
    Error to the court of common pleas.
   Plaintiff in error was convicted of keeping a bucket shop, under an indictment charging him-with so doing, as follows:

“That Robert E. Gill, late of the county aforesaid, on the 1st day of January, in the year of our Lord one thousand nine hundred and four, at the county aforesaid, and on divers other days and times from said last named date to the day of the finding of this indictment, in the county aforesaid, did unlawfully keep a bucket shop and place wherein was conducted and permitted the pretended buying and selling of shares of stocks and bonds of corporations, petroleum, cotton, grain and produce on margins, without any intention of receiving and paying for the property so pretended to be bought, or of delivering the same so pretended to be sold, as aforesaid, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Ohio.”

The statute under which said indictment was drawn, in the particulars here involved, is worded as follows:

“Section 6934a-l. That it shall be unlawful for any * * * person to keep or cause to be kept within this state any bucket shop, office or other place wherein is conducted or permitted the pretended buying or selling of the shares of stocks or bonds of any corporation (a) either on margins or otherwise, without any intention of receiving and paying for the property so bought, or of delivering the property so sold; or wherein is conducted or permitted the pretended buying or selling of such property, (b) on margins, or (c) where the party buying any of such property, or offering to buy the same does not intend actually to receive the same if purchased, or to deliver the same if sold.”

The division of the statute into sub-heads under the letters (a), (b) and (c), is for convenience in discussing objections to the charge, hereafter mentioned.

. Numerous reasons are assigned by counsel for plaintiff in. error why the conviction in this case should not stand. We shall take them up in their order.

It is said that the indictment is insufficient because it does not aver "that the place was kept for the purpose of permitting the entering into of unlawful contracts and does not define the nature and character of the contracts alleged to have been permitted to be entered into.

Having passed upon a similiar indictment in the case of Wirth v. State of Ohio, at the fall term, 1906, in Lorain county, and having held the same sufficient, we do not consider it necessary to enter into a discussion of this point and hold it not well taken.

It is said that the verdict is not supported by sufficient evidence.

We think the record clearly shows that Gill' kept a place for the purpose of permitting, and in which he permitted, the pretended buying of stocks on margins without the intention on the part of his customers of receiving or paying for said stocks if the price of the same went up, and without any intention on his part in that event of delivering stocks so pretended to be sold by him to said customers. An exhaustive resume of the evidence by the assistant prosecuting attorney, in his brief filed in this ease, makes it unnecessary for us to say more on this subject than that we find he has correctly stated the facts from the record and drawn the proper conclusions therefrom.

We find no error in giving the state’s three requests to charge.

The first, that “the keeper must know that the transaction is not prohibited by the statute,” is as applicable in a bucket shop ease as in the unlawful selling of liquor to a minor.

The second request of the state will be considered in connection with objections to the general charge as given by the trial judge.

The third request was properly given. The “buy slips” and ‘ ‘ confirmation slips ’ ’ in which the customers and the keeper undertook to give an apparent legal aspect to the transactions, were not conclusive, as the statements of said customers before the jury and the conduct of the keeper, as shown in evidence, clearly showed. To have refused this request and to have left any impression with the jury that they were conclusive would have been, in effect, to have legalized this scheme and subterfuge and to have directed a verdict for the accused.

Defendant’s eighteenth request to charge was properly refused, for reasons that will appear when we come to consider the charge as given.

There are four specific objections to the charge as given; the most important of these requires a careful analysis of the statute quoted.

I. It is said that distinct offenses are defined in this statute, the first found in the paragraph marked (a) which requires, it is claimed, that the pretended sales or purchases must be upon margin or otherwise without intention, on the part of either keeper or customer, to deliver or receive, and another under paragraph marked (c) where the pretended sales or purchases need not be upon margin, but must be with the intention on the part of the customer only, not to receive the stock, the intention of the keeper not being an element of the offense.

It will appear from an examination of the indictment that it was drawn under the first paragraph (a), and it is claimed that the court erred in reading to the jury the balance of the statute (b) and (c), thus intimating that they might convict though the sales were not “on margin,” and regardless of the intention of the keeper.

To use the words of counsel for plaintiff in error on this subject:

“This was particularly prejudicial because the portion above quoted (b and c) is that part of the statute which penalizes the act when the parly buying does not intend to receive regardless of live intention of the keeper, and also includes that part of the statute which penalizes the buying and selling regardless of whether the purchases are made on margin or otherwise.”

In line with this objection is the criticism that the court neglected throughout the charge to state that the sales must be “on margin.”

In the view we take of this statute, as a whole, these points are not well taken.

We do not _ think there are different offenses defined in this statute, but adopting counsel’s theory that there are two distinct offenses specified, and paraphrasing the statute to test the theory, we read it as follows: (a) It is unlawful for any person to keep a bucket shop, office or other place wherein is conducted or permitted the pretended buying or selling of stocks, that is to say, the buying or selling of stocks, either on margin or otherwise, without any intention on the part of the person buying of receiving and paying for the property so bought or without any intention on the part of the person selling, of delivering the property so sold.

(b) It is unlawful for any person to keep a bucket shop, office or other place, wherein is conducted or permitted the pretended buying or selling of stocks, that is to say, when the party buying any of such property, or offering to buy the same, does not intend actually to receive the same if purchased, or when the party selling any of such property, or offering to sell the same, does not intend actually to deliver the same, if sold.

Confessedly, so to read the statute would be to make it tautological, were there no distinction to be made between the phrase in the first paragraph, 11 without any intention” and the corresponding phrase in thesSecond paragraph “when the party does not intend.” One allows proof of a negative and the other of an affirmative; one requires proof that there was no intention to deliver or receive, the other requires proof that there tuas an intention not to receive.

The distinction is too refined and strained, it is true, to have much merit, but the argument leads to the conclusion that the statute itself is tautological and is another of those clumsily worded laws which so frequently afford opportunity for the lawyer’s best efforts and vex and confuse the courts, requiring construction, but in themselves offering little light to those whose duty it is to construe them, when called upon so to do. As to the proposition that either clause requires -that proof must be made that the sales were “on margins,” we find no difficulty. The first paragraph speaks of the buying or selling of stocks on margin or otherwise. The last paragraph says nothing about margins. The indictment alleges that the buying and selling was “on margin,” and the proof was to that effect. The failure of the trial court to dwell upon the margin feature was not prejudicial to the accused. The gravamen of the charge was the pretended buying and selling, without intention to receive or deliver.

It is as though one were accused of unlawfully selling intoxicating li'quor, to-wit, whiskey, under a statute making it unlawful to sell intoxicating liquor; proof that hé sold whiskey and a charge as to intoxicating liquor, with no reference in it to the kind specified, to-wit, whiskey.

No prejudice would result from such a charge.

So, too, as to the intention of the keeper. If he kept a place wherein he conducted or permitted the pretended buying or selling of stocks, whether he or his customers did not intend to deliver or receive the stocks so pretended to be bought or sold, the keeper would be guilty.

II. We think that the charge that “the fact that the defendant did or did not inquire of his customers, if such you find the fact to be, as to their intention, does not shield him from responsibility,” was neither erroneous nor misleading. Taken in connection with the balance of the charge, and in the light of the evidence adduced, it was proper. His inquiries, if he made any, were admissible, as tending to show good faith on his part, and if he made none, as tending to show disregard of the law, but the mere fact that he made such inquiries would not shield him from prosecution, if other evidence in the case showed him guilty, and if he made no inquiries, that fact would be no shield.

III. What the court said in the general charge as to the inconelusiveness of the written contracts, we have already ruled upon in our consideration of the state’s third request to charge.

IV. It is claimed that the word “margins” is nowhere in the charge defined, and that inasmuch as it is a technical one and essential, and included in the indictment, that it should have been defined.

Three reasons occur why no prejudice resulted from this omission, if it may be called such, on the part of the trial judge.

As already shown, the word “margin” was not essential to the indictment; its meaning is defined in the dictionaries and it is of common use and well understood, and finally there was no request by the accused that its meaning should be defined by the trial judge.

T. J. Ross.and W. IT. Boyd, for plaintiff in error.

Ohio, and P. L. A. Lieghley, Assistant Prosecuting Attorney S. V. McMahon, Prosecuting Attorney Cuyahoga County,

Cuyahoga County, Ohio, for defendant in error.

We find no error in this record and the judgment is affirmed.


text:
    DISPOSAL BY WIFE OF HUSBAND’S PROPERTY BY WILL.
    Circuit Court of Columbiana County.
    Edwin Thomas et al, Executors, v. Sarah Ann Hobson et al.
    Decided, April Term, 1907.

      'Wills — Husband Devises Residue of his Estate to Wife with Right of Disposition — Wife Malees Will Disposing of said Residue — Wife Dies Hirst — Wife’s Will Inoperative — Husband Held to have Died Intestate as to said Residue — Ordered Distributed to Heirs at Law.

    Testator provided by his will, “I will and direct that my wife, Dorothy Hoyle, shall be allowed to dispose of all the rest, residue and remainder of all my estate and effects (not hereinbefore disposed of) by will or otherwise as she deems just and prudent, previous to her decease, to take effect after her death.” Three years afterwards the wife made a will disposing of the residue of her husband’s property not specially disposed of by him, stating in her will that the disposition was made in accordance with the will of her husband. The wife died twelve years before her husband. Held: The wife had no power to dispose of the residue of the estate of her husband; that he died intestate as to such residue and that his heirs at law took the same by descent.
    Cook, J.; Burrows, J., and Laubie, J., concur.
    Appeal from Columbiana Common Pleas Court.
   This action is by the executors of the wills of John Hoyle and Dorothy Hoyle, deceased, and is for the purpose of obtaining the direction and judgment of the court under Section 6202, Revised Statutes, respecting the distribution of the estates of the decedents.

John Hoyle made his last will and testament on the 3d day of June, 1886. The second, ninth and tenth items of the will, which are in controversy, are as follows:

“2d. I will and bequeath to my beloved wife, Dorothy IToyle, during her natural life all the property that I own or possess at the time of my decease, real, personal or mixed, and at her death to be disposed of as hereinafter named.
“9th. At the death of my wife, Dorothy, I will and direct that one-half of what remains of all my property or that which has not yet been disposed of, as hereinbefore named, shall be equally and ratably divided amongst my brothers’ and sisters’ children share and share alike.
“10th. I will and direct that my wife, Dorothy IToyle, shall be allowed to dispose of all the rest, residue and remainder of all my estate and effects (not hereinbefore disposed of) by will or otherwise as she deems just and prudent previous to her decease, to take effect after her death.'”

On the 15th day of August, 1889, more than three years after John IToyle made his will, his wife, Dorothy, made her will and in that will she recites before making disposition that she executed the will for the purpose of disposing of a certain portion of the estate of her husband, John IToyle, which by his will he had left for her to dispose of as she thought best and.which then remained undisposed of, as a reference to his will would show. She then by this will made a disposition of that portion of the estate of her husband.

Dorothy IToyle died on the 19th day of February, 1892. John Hoyle died on the 22d day of March, 1904. Both,of the wills were probated after the death of John Hoyle.

The claim of defendant, Sarah Ann Hobson, and other devisees and legatees of Dorothy Hoyle under her will, is that by virtue of the tenth clause of the will of John Hoyle she, Dorothy, had the right to dispose of all the estate of her husband by will, not specifically disposed of by him in his will; while the claim of the heirs of John Hoyle is that the wife had no power to dispose of any of the estate of'her husband by will; and that John Hoyle died intestate as to the portion not disposed of in his will.

It must be conceded that under our statute, Section 5914, that no disposition of property can be made by will except the party has an interest therein; therefore, if John was the absolute owner of the property at the time Dorothy made her will and at her death, then her will was wholly inoperative as to such property. John might possibly dispose of the property by will and give his wife by apt words the power of appointment if she should not survive him, but that it is not done in this case. She undertook by her will to dispose of property that belonged to him, was in his possession, and under his control. This could not be done. If John had devised and bequeathed the property by his-will to such persons as she should direct by her will, the case might be different, but there is no disposition of the property in controversy, except by the will of Dorothy.

In the case of Condit v. DeHart et al, 62 New Jersey Law, 78 (40 Atlantic Reporter, 776 — Supreme Court of New Jersey, July 19, 1898), it is held:

Wills — Power of Appointment — Execution. D, by his will, devised his residuary estate to his son PI. By a codicil he after-wards authorized his said son to dispose, by his will, of said residuary estate, and then devised and bequeathed the same to such person or persons as his son should designate and appoint by his will as those to whom he desired it to go. II died before the testator, leaving a will in which, after reciting the power of appointment contained in the codicil to his father’s will. ■ he designated his wife, A, as the person to whom the estate should go. Held: That, while the power of appointment could not be executed by IT during the donor’s lifetime, and therefore his will was not a good execution of it (because he could not, by his will, make a valid disposition of property, which was wholly and absolutely in the ownership and control of another), yet the devise contained in the codicil to the testator’s will, to such person or persons as IT should designate in his will, operated to pass the estate and the will of the latter could be referred to for the purpose of ascertaining the personality of the testator’s devisee. ’ ’

To the same effect is the case of Piffard’s Appeal, 111 N. Y., 410 (18 North Eastern Reporter, 718), the syllabus of which ease is as follows:

“The will of P gave to his daughter, S; one-fifth of all his real and personal estate. By a codicil he directed that S should have power by her will, ‘heretofore or hereafter’ executed, to dispose of the share devised and bequeathed to her, and to that end he directed that such share should be paid over by his executors to the executors or trustees named in her will in case of her death during his lifetime, but in case she survived, then that such share should be paid over to her. S died before the testator leaving a will. Held: That while the testator gave a power of appointment, which as a power the donee could not execute during the donor’s lifetime, yet the further language of the codicil showed the testator’s intent to be, in case of the happening of the contingency specified, to devise and bequeath by force of his own will the daughter’s one-fifth to such person or persons and in such shares and proportions as she had directed in the disposition of her own property; that the will of the daughter could be referred to to define and make certain the persons to whom and the proportions in which the one-fifth should pass; and that the executors of the will of P were properly required to pay over that share to the executors of the will of S for the purposes of distribution.”

G. S. Speaker and G. T. Barrel, for plaintiffs.

J. C. Boone, J. G. Moore, George Duncan and George E. Davidson, for defendants.

It is further said that if the power of appointment failed that the will of the wife became part of the will of the husband by incorporation.

In order to incorporate the will of the wife into that of the husband’s, by reference, three things were necessary:

“1st. The will itself must refer to such paper to be incorporated as being in existence at the time of the execution of the will and in such a way as'to reasonably identify such paper in the will and in such way as to show testator’s intention to incorporate such instrument in his will and to make it a part "thereof.
“2d. Such document must in fact be in existence at the time of the execution of the will.
“3d. Such instrument must correspond to the description thereof in the will and must be shown to be the instrument therein referred to.” (Page on Wills, Section 164.)

None of these requisites exist in this case.

The finding and decree of the court is that the heirs of John IToyle are entitled to that portion of the property sought to be devised and bequeathed by the will of Dorothy IToyle; and this being the.same holding as made by the court of common pleas, the same entry will be made as in that court.


author: Jelke, J.

text:
    AGREEMENT FOR. SALE AND PURCHASE OF STOCK.
    Circuit Court of Hamilton County.
    John W. Herron, Administrator of Jacob R. Stewart et al, v. Geo. F. Stewart and W. T. S. Johnson.

    Decided, January 8, 1907.

      Contracts — Option to Employes to Purchase Stock — Executory Character of Agreement — Mutuality—Consideration—Uncertainty as to Time for Payment — Reasonable Time will be Fixed.

    There was a manifest intention on the part of those entering into the contract here involved that it should be mutually obligatory and enforcible, and it is not lacking in either mutuality or in consideration; and the law will cure the uncertainty as to time by annexing a reasonable time.
    This ease was begun in the probate court, where Mr. Herron set up as administrator of the estate of Jacob R. Stewart, that the deceased died intestate, leaving as his sole heirs, next of kin and distributees, Carrie E. Stewart, his widow, George F. Stewart, Gertrude Stewart Titus and Mary L. Hazleton, his children; that intestate at the time of his death was in possession of 360 shares of capital stock in the Bradford Machine Tool Company, of the par value of $100 each, which stock stood in decedent’s mame on the company’s books, and the certificate representing the same came into possession of the administrators; the estate had been practically settled except as to said stock; that George F. Stewart and W. T. S. Johnson (plaintiffs in error) claimed] an interest in these shares under a contract entered into with/ them and Lewis N. Gateh by deceased, the alleged contract and certain endorsements thereon being set forth in the petition; that Gatch having assigned his interest in the shares to George F. Stewart and Johnson, was not made a party to the suit; that the widow and daughters had made demand on the administrator to disregard and disaffirm the contract and distribute the shares in question to the distributees of the estate, stating also the reasons assigned by them for making such demand; and the administrator alleging ignorance of the true course he should adopt, prayed that the parties in interest be required to appear and answer, a,nd for a decree determining their rights and the duties of the administrator in the premises.
    Further provisions of the agreement were:
    1. The purchase price of said stock shall be its par Value of one hundred dollars ($100) per share.
    2. Said stock shall remain in the name of said J. R. Stewart until it is fully paid for as herein provided, etc.
    3. All dividends declared on said stock shall be paid to said J. R. Stewart until it is paid in full. Enough of said dividends shall be retained by him to make four per cent, on the balance of said purchase price unpaid at the time said dividends are respectively declared, and the balance thereof applied by him on said purchase price; and as soon as said stock is fully paid for, either through dividends or otherwise, it shall be delivered to said purchasers. In ease the dividend declared any year shall be less than four per cent, no interest shall run on said purchase price in excess of the dividend declared, and if none be declared there shall be no interest.
    4. Should said purchasers desire to make payments on said purchase price in addition to the dividends from time to time, declared on said stock, they shall have the option of doing so.
    . There was no express promise by the purchasers to pay for said stock, and no time named in the contract itself within which it was to be performed.
    The younger Stewart and Johnson filed a joint answer, and Mrs. Stewart, the widow, and Mrs. Titus and Mrs. Hazleton, the daughters, filed separate answers, which all practically admitted the facts stated in the petition.
    The probate court held that the contract was voidable for uncertainty and indefiniteness, but on appeal to the common pleas it was held to be valid. The circuit court divided, but reversed the common pleas. The minority opinion by Judge Jelke has recently been affirmed by the Supreme Court. It is subjoined:

       Affirmed; reported (Stewart et al v. Herron, Admr., et al, 77 Ohio State,-).

   Jelke, J.

The parties evidently thought they were making a contract, a bi-lateral agreement, something of business significance, and intended that it would be mutually obligatory and enforceable. It does not read like a one-sided undertaking of benevolence. There is no “ charity ’ ’ about it.

Has that which they reduced to writing and acted upon, the essentials of a legal contract? Neither George Stewart nor Johnson are bound to stay or pay. When everything was executory there was no mutuality.

As a business proposition what was Stewart, Sr., driving at? He wanted these young men to continue in the company’s employ. If they did so continue, he recognized that their services were worth to 'the company and to him, its largest shareholder, something over and above their respective salaries. When they had entered upon the employment and under this contract, at the end of the first day’s work had they done something to and for Stewart, Sr., which he recognized as of value and which would be to him a price paid by these young men wherefore they could have the right to exercise these options? It seems to me they had.

With rare subtility this writing was framed to secure in an accumulating degree that which Stewart, Sr., wanted, i. e., the loyalty and zeal of these young men. The longer they stayed, the harder they worked, the more successful their efforts, the more strongly were they cemented to the company and to him, and if they must leave the more potent the inducement to buy,

These are the things which operated upon the mind of Stewart, Sr., and at the end of the first day’s work he had received an installment on account of the consideration for the options.

It is not for us to weigh this consideration if we find from the writing it was to the mind of Stewart, Sr., the moving consideration.

I incline to the opinion that the executed consideration supporting the Johnson and Stewart shares will likewise serve as to the Gatch shares, but on this point I am willing to yield to my colleagues.

Herron, Gatch, Herron & James and John W. Warrington, for plaintiffs in error.

Maxwell & Ramsey, for defendants in error.

As to the uncertainty.of time the law will “annex” a “reasonable time.”


text:
    VACATION OF ORDER. OF ARREST.
    Circuit Court of Cuyaboga County.
    Cosimo Catalano v. Salvatore Amato.
    Decided, December 9, 1907.

      Arrest — Ruling on Motion to Vacate Order of — Becomes Res Adjudicata, When.

    A motion to vacate an order of arrest before judgment, baying been once beard and refused, is res adjuclicata.

    Winch, J.; Henry, ■ J., and Marvin, J., concur.
    Error to the court of common pleas.
   The defendant in this case was arrested on an order of arrest before judgment issued out of the common pleas court, on the affidavit of the plaintiff, on February 7, 1907.

On April 4, 1907, the defendant filed his motion to, vacate said order of arrest, basing his motion upon the instituting of proceedings by plaintiff to replevin the goods sued for in this action. This motion was overruled.

On April 23, 1907, the defendant made application for leave to file another motion to vacate" the order of arrest, in which he says:

“Defendant asks for leave to make the above motion and to be heard on the same on the ground that the motion to vacate the order of arrest before judgment and release and discharge bail, which by this court has been dismissed, was a motion in which it was not sought to, and no attempt was made to traverse or deny any of the facts or allegations constituting the grounds of arrest in plaintiff’s said alias affidavit for order of arrest, but that in said motion defendant set up that plaintiff ivas barred and estopped from bringing the above cause of action by virtue of an alleged election between two inconsistent remedies. ’ ’

This application was granted and on April 30, 1907, the defendant filed his second motion, basing it upon the untruthfulness of the affidavit for the order of arrest.

This motion was heard and granted and the defendant discharged, to all of which plaintiff excepted, and has brought said order here for review upon transcript and bill of exceptions.

In this court it is claimed that said order complained of is erroneous for three reasons, first, because a former motion to vacate the order of arrest having been overruled, the matter was res adjudicata, not open for review except by motion for new trial or proper proceedings in error; second, because the defendant being out on bail, he had no right to file the motion, and third, because the judgment was against the weight of the evidence.

We do not find it necessary to consider the last two assignments of error, for we think that the first point is well taken and that the trial court erred in entertaining the second motion.

The proceedings here had were for the attachment of the body of the defendant and are analogous to proceedings in attachment of a debtor’s goods and must be subject to the same rules.

Such proceedings, though ancillary to the main case, are conclusive upon the parties the same as other final orders. Gardner v. White, 23 O. S., 192; Young v. Gerdee, 42 O. S., 102; Strauss v. Corch, 47 O. S. 115.

Such being the case there appears no good reason why the rule laid down in the case of Mengert, Trustee, v. Brinkerhoff, Sr., 67 O. S., 472, should not be applied. That rule is as'follows:

“A defendant in an action is required to plead all the defenses he has, and in a subsequent action he will be concluded as to all such defenses, even though he failed to plead some of them in the former action.”

This conclusion is in accord with the views expressed by Yon Fleet, in his work on Former Adjudication, see pages 96 and 99.

Klein Harris, for plaintiff in error.

Hobday & Quigley, for defendant in error.

Justice Brewer, when on the Supreme Court of Kansas, expressed an opinion that motions might sometimes be renewed upon leave of court. The case referred to is Adams v. Lockwood, 30 Kansas, 373, the syllabus of which is as follows:

"After a motion has been heard and overruled, the moving party has no right to file a second motion for the same relief upon grounds existing at the time the prior motion was made and decided. It can only be done upon leave of the court, which should rarely be granted.”

If there is any such discretion in the trial judge, clearly it was abused in this case, for this second motion is based entirely upon a denial of the allegations in the affidavit for arrest that the debt was fraudulently contracted. There can be no excuse for failure to set up such ground in the first motion, for there was nothing new about it or beyond his knowledge from the beginning.

• The case of Wingo v. Hooper, 98 N. C., 482, is squarely in point. In that case it was held:

"A motion to vacate an order of arrest, having been once heard and refused, is res adjudicaba. ’ ’

So it seems that we are not without authorities sustaining the principle here announced, though we are aware that the courts of New York are not in strict accord with our conclusions.

For error in granting the second motion to vacate the order of arrest, said judgment is reversed and vacated and the cause is remanded with instructions to overrule said motion.


text:
    LIABILITY OF MANUFACTURERS AND WHOLESALE DEALERS FOR DOW LAW TAX.
    Circuit Court of Henry County.
    The Christ Diehl Brewing Company of Defiance, Ohio, v. Fernando J. Beck, Auditor of Henry County, Ohio and Henry L. Vey, County Treasurer of Henry County, Ohio.
    Decided, October Term, 1907.

      Taxation — Sales of Beer by a Brewing Company from Cold Storage Elsewhere than at the Brewery — Creates Liability for Low Tax, When — Construction of the Phrase “Trafficking in Intoxicating Liquors” — Effect of Taking Blanket Orders with Subsequent Deliveries When Desired by Those Ordering — Sale Complete, When —Injunction—Section J/36j-9.

    A brewing company manufacturing and selling beer at wholesale, which maintains a cold storage house in a location separate from its manufactory, and from which cold storage house daily deliveries of beer are made to customers on orders previously taken by a soliciting agent, thereby becomes a trafficker in intoxicating liquors within the meaning of Revised Statutes, 4364-9, and is subject to the Dow tax provided for by that act. Diehl Brewing Co. v. Spencer, 9 C. C. — N. S., 577, not followed.
    Hurin, J.; Haynes, J., and Wildman, J. (sitting in place of Norris and Donnelly, JJ.), concur.
   This action was brought to enjoin the collection of certain taxes and assessments levied for the years 1902, 1903 and 1904 under and by virtue of Section 4364-9 et seq., Revised Statutes of Ohio, and commonly known as the Dow tax. These taxes were placed upon the tax duplicate by the auditor of Henry county, Ohio, upon receiving satisfactory information that the plaintiff was engaged in the business of trafficking in intoxicating liquors in the villages of Holgate and Deshler in said county. The case is before us on appeal and was heard upon an agreed statement'of facts. The facts essential to an understanding of the case are as follows:

The plaintiff is a brewing company engaged in manufacturing and selling beer at wholesale in Defiance, Defiance county, Ohio. It had during the years 1902, 1903 and 1904 a cold storage house at Holgate and one at Deshler, both in Henry county.

Its method of doing business in Holgate and Deshler was to send its soliciting agent to those places periodically — perhaps once a month or oftener. This agent took orders from saloon keepers for the amount of beer which they would need during the next period of thirty days or until he would next make his round. These orders were sent to the main office of the brewing company at Defiance for approval.

From its brewery in Defiance the brewing company would then ship in carload lots to Holgate and Deshler an amount of beer sufficient for the demand in those places. The beer so shipped was consigned to itself, the Christ Diehl Brewing Co., and was received by its agents in Holgate and Deshler. and stored in its cold storage houses in those towns and none of it. was in any way designated or set apart for any particular customer.

Each morning and evening the agent, of the brewing company at Holgate and at Deshler would make the round of the saloons in his town; inquire of each saloon keeper how much beer he would need for the day or part of a day; enter that amount with the price thereof on a book which he carried with him; make a duplicate entry on the book kept by the saloon keeper; and afterwards would deliver by wagon to the’ saloon keeper the amount and kind of beer so ascertained to be needed, taking such amount of beer from the general stock on hand in the cold storage house, and continue to so do until the amount previously ordered by any customer had been delivered to him.

The price of the beer was- at all times fixed by the brewing company at Defiance or by the soliciting agent. As a rule the agents at Holgate and Deshler collected no money, though they occasionally did so and especially from customers who were considered financially unsound. The collections of money for the beer so delivered were usually made by the soliciting agent at his next call.

It is also agreed that all of the beer so delivered from said cold storage houses was intoxicating liquor, and was not sold upon prescription issued in good faith by reputable physicians in active practice or for exclusively known mechanical, pharmaceutical or sacramental purposes, but was sold by plaintiff to its said customers to be retailed by them as an intoxicating liquor in the usual retail trade.

The question before us is: Was the business thus engaged in by plaintiff in Holgate and Deshler a trafficking in intoxicating liquor within the meaning of Section 4364-9 and the following sections of the statute? If it was not, plaintiff is entitled to the injunction prayed for. If it was such a business, the injunction was wrongfully granted and must be dissolved. The statute, Section 4364-16, defines the term “trafficking in intoxicating liquors” as follows:

“The phrase, ‘trafficking in intoxicating liquors,’ as used in this act, means the buying or procuring and selling of intoxicating liquors otherwise than upon prescription issued in good faith by reputable physicians in active practice, or for exclusively known mechanical, pharmaceutical or sacramental purposes, but such phrase does not include the manufacture of intoxicating liquors from the raw material and the sale thereof at the manufactory, by the manufacturer of the same in quantities of one gallon or more at any one time.”

It is evident that the whole question involved in this. case depends on the one word ‘ ‘ sale ’ ’ and its definition.

When and where under the facts agreed upon in this case, did the “sale” take place?

Was the sale completed by the soliciting agent when he took the order for the supply of beer to each saloon for the coming month ? or

Was it completed when the order for beer was accepted and confirmed by the home office in Defiance? or

Was it completed when the beer for all the Holgate and Deshler customers was shipped in bulk to the cold storage houses in those towns? or

Was it completed when the beer was delivered by the agent of the brewing company from the cold storage houses to the saloons ? or

Was it only completed when, after delivery, the soliciting agent again called, collected the money for the beer previously delivered, and solicited a new order?

We have been cited to many authorities, decisions of courts in this state and in others, constructing the statutes involved in this case and similar statutes in other states.

Some of these it will be profitable for us to comment on and consider in their bearing on this case, always remembering, however, that there is no peculiar law applicable to cases of this kind except the constitutional and statutory law, and that the case must ultimately be decided upon the broad principles applicable to all contracts of bargain and sale.

In the ease of Senior v. Ratterman, 44 O. S., 661, it was held that—

“Section 38 of the schedule to the Constitution, which provides that ‘no license to traffic in intoxicating liquors shall hereafter be granted in this state; but the General Assembly may, by law, provide against evils resulting therefrom,’ applies as well to the wholesale as to the retail traffic in intoxicating liquors. ’ ’ '

The statute then under consideration is the same one involved in the case at bar. It distinguishes between the obligations of a manufacturer of such liquors and all other dealers, but the court hqld that this distinction did not, by force of the Constitution, extend to other wholesalers as distinguished from retailers.

Just why the Legislature should have seen' fit in its wisdom to impose a tax upon the small retailer of an article, while it permits the manufacturer of that same article to make and sell it in car load lots without any tax whatever, is not apparent to the judicial mind; but such is the statute and, the Supreme Court having upheld the constitutionality of the statute, we are not at liberty to discuss that feature of it, and it is not material to this case.

The question before us is not whether a brewery may or may not sell beer, from its brewery, without taxation — that right is granted by the statute — but whether it may sell elsewhere than at its brewery, and whether a sale made as in the case at bar is a sale elsewhere than at the brewery.

The cases of Hanson v. Luce, Treasurer, and Monaghan v. Luce, Treasurer, reported together, 50 O. S., 440, are strongly relied on by the plaintiff to sustain its claim of exemption from taxation, and those cases are very closely similar to the case at bar.

In both those cases, saloon keepers, having paid the Dow tax on their saloons, built cold storage houses, for the storage of beer and then proceeded to engage in the wholesale sale of beer as well as the retail. Both employed agents who, as in the case at bar, took orders for beer, and these orders were supplied from the respective cold storage houses of plaintiffs, but only in wholesale lots. The sales were made to all who wished to buy but no beer was sold at the cold storage house.

The Supreme Court held in those cases that such sales were permissible without incurring liability for additional taxes.

In both of those eases the cold storage houses were closely connected with the saloon on which the Dow taxes had been paid. In one ease, the cold storage house was in the rear of the saloon, only four and a half feet distant from it and connected with the saloon by a covered way — practically the same building. In the other ease, the cold storage house was on the opposite side of the street from the saloon but on'y 155 feet distant from it.

This fact may have something to do with the decision of the case; but it appears from the opinion that it was decided altogether on the conceded fact that “no beer was sold at said cooler. ’ ’

From the opinion by the court, we quote as follows:

“It thus appears that beer was neither bought nor sold at the cooler, but that all the business of buying and selling was done at the saloon and that the cooler was a mere place of storage and not a place of business and that no traffic whatever was carried on at the cooler; no buying, no selling.
“It is difficult of comprehension how the business of trafficking in an article can be said to be carried on at a place where such article is neither bought, sold nor bartered.
“The traffic contemplated by the statute consists in the purchase and sale or 'barter of the liquors named therein and the place of the traffic is the place where such purchase, sale or barter is had, and not the place where the liquors are stored for cooling or safe keeping.
‘ ‘ The sales of beer made by the driver of the beer wagon, must be referred to the place where his employer carried on the traffic and not to the place of storage.”

I have quoted thus extensively from the opinion in those cases because it seems to disclose both the theory on which the decision was rendered and to emphasize both the similarity and the dissimilarity of those cases with the case at bar.

If it is true in the case at bar, as was conceded in those eases, that there was. no traffic or sale at the cold storage houses, then those cases are conclusive in .the present instance. But that is the very point that is to be determined in this ease. There it was conceded that no beer was sold at the cooler. Here it is contended that beer was sold from the cooler, or cold storage house. This is the vital point in this case.

The case of Jung Brewing Co. v. Talbot, Treas., 59 O. S., 511, is also ah interesting case. In that ease it appeared that the brewing company, located in Cincinnati, maintained a cold storage house in Urbana, Champaign county, "where beer, shipped from the brewery, was received and kept on hand ready for sale and delivery to customers in the latter city, from time to time as they might order. The sales were not made directly at the storage rooms, but were made by agents and employes of the plaintiff who drove wagons for that purpose which were supplied with beer in the keg from the storage room.” The court held that the business conducted in that manner was taxable and on page 516 of the opinion the court say:

"If customers had made their purchases or received the property at the building (meaning the cold storage building) it would undoubtedly have been a place of traffic. Instead of conducting the business in that way the agents who had charge of the building and contents obtained orders from the customers which they filled by hauling the beer from the building to the customers. That was merely a matter of convenience to the purchaser or inducement to buy. The building where the property sold was situated and from which it ,was delivered was, for every practical purpose, the place where the business was carried on. The substantial distinction between this case and the eases of Hanson v. Luce, and Monaghan v. Luce, 50 O. S., 440, is that in the latter case the storage room was used in connection with, and as part of the wholesale and retail traffic carried on by the proprietor at his saloon where all the business was done, and for which he had paid the tax. In such a case, it was held he was not subject to a separate tax on account of the use made of the storage room. ’ ’

Here we find a close similarity to the case at bar and the court holds that though “agents who have charge of the building and contents obtained orders from the customers which they filled by hauling the beer from the building to the customers, that was merely a matter of convenience to the customer or inducement to buy; the building where the property sold was situated and from which it was delivered was, for every practical purpose, the place where the business was carried on. ’ ’

But plaintiff in the case at bar insists that the manner of sale in this case, the fact that a blanket order had previously been taken and that the daily orders delivered from the cold storage houses were merely designations of what was immediately needed, takes it out of the rule thus laid down.

A ease perhaps still more nearly identical with this case is that of Village of Bellefontaine v. Vassaux, 55 O. S., 323. There a brewery company at Sidney owned a cold storage house at Bellefontaine. There was evidence tending to show that customers in Bellefontaine ordered beer of the brewing company at Sidney, which thereupon shipped it to the purchaser at Bellefontaine, but in care of its own agent, who stored the beer in the cold storage house and delivered it to the purchaser only when. paid for. In that ease there was an attempt to show that the beer-for each purchaser was set apart by itself in the storage house in a rack labeled with the initial of the purchaser’s name but there was no attempt to show a separation between the beer ordered by two men with names of the same initial letter. The court held that such evidence justified a conviction of the charge of selling intoxicating lipuor in violation of law.

The case is especially important because of the discussion in the opinion of the question as to what constitutes a sale, and to that question it is necessary continually to return; for on it this case must depend. What then is a sale and when is it complete ?

Blackstone (2d Com., page 446) says it is “a transmutation of property from one man to another in consideration of some price. ’ ’

Kent calls it “a contract for the transfer of property from one person to another for a valuable consideration.” 2 Kent’s Com., 468.

Benjamin on Sales, Section 1, declares that, “It may be defined to be a transfer of the absolute or general property in a thing for a price in money.”

Mechem on Sales defines it as, “The transfer, in pursuance of a valid agreement, from one party called the seller to another called the buyer, of the general or absolute title to a specific chattel, for a price, or a consideration estimated in money,” and says further that the sale takes place only when the title passes.

In all of these definitions except that of Kent a transfer of title or property is held to be aneeessary element of a sale; and in Kent’s definition it is the contract for the transfer which constitutes a sale.

But in all of these authorities it is held that it is not the mere contract to sell that makes a valid sale. There must be something more' — an actual setting apart, not necessarily a delivery, though usually a delivery, of the thing bargained for. Until such setting apart or delivery takes place the thing contracted for remains the property of the seller, although the buyer may recover damages for the failure to perform the contract by a delivery. This delivery may be constructive, as when it is made to a common carrier for transfer to the purchaser, but even there there must be some setting apart of the thing to be delivered.

And this conclusion was followed by the Suppreme Court in The Village of Bellefontaine v. Vassaux, supra, the court holding that “as a general rule, a sale of personal property is not completed when anything remains to be done to' identify the thing sold or discriminate it from other like things. ’ ’

This rule has been held to be varied by particular customs under certain conditions, but is the general rule applicable in all cases, where no special custom is found to the contrary.

Applying these principles to the case at bar, when could the buyer first point to any particular keg of beer and say “that is mine.” Not when he gave the order to the traveling salesman ; not when that order was approved at the home office of the brewing company; not when the beer for all the customers in Holgate or Deshler had been shipped and stored together in the cold storage houses in those towns. Up to this point no title had passed. Any creditor of the brewing company could have seized the beer and held it by attachment as the property of the brewing company. But when the agent of the brewing company took that beer from this cold storage house, setting apart some of it for one customer and some for another and, from the cold storage house, began the delivery of their portions to the respective purchasers, then the brewing company lost its title and the purchaser gained it whether payment had been made or not. Then the sale was complete.

Does it follow, as claimed by the plaintiff, that in such event the final delivery, being at the purchaser’s saloon, was not at the cold storage house and therefore the business can not be taxed? We think not. As in the case of Jung Brewing Co. v. Talbot, Treas., the court held that the business to be tax^d was not done on the wagon but at the place from which the wagon was loaded and the beer delivered, so here, the beer was delivered from the cold storage house and as was said in that case, “The building where the property sold was situated and from which it w;ts delivered was for every practical purpose the place where the business was carried on. ’ ’

But the plaintiff distinguishes that case from this, because there the agent who managed the cold storage house also solicited orders and sold the beer, while here the orders were all previously taken by another agent and only beer already ordered was delivered. It would be difficult to distinguish these two cases and the Bellefontaine ease upon any principle known to us.

The distinction is, we think, without force. True, the order had previously been given, but the execution of it, the completion of the actual sale, was carried out only from the cold storage house and by the agent in charge thereof. Until such delivery, there was no completed sale; no setting apart of any particular beer; no transfer of any title to any particular kegs or barrels of beer. The business was conducted from the cold storage house and only completed by the agent in charge of that house. We can not believe that there is any substantial distinction which would take this case out of the rule laid down in the Jung Brewing case and in the Bellefontaine case. If there was no completed sale by the soliciting agent, and none at the home office, then the only other places where a .sale could have been completed was either at the cold storage house or from the delivery wagon at the door of the saloon. The Jung Brewing ease negatives the latter construction and this is in accord with the universal commercial law. There remains only the one possible place of sale and that is at the cold storage house.

We have reached this conclusion after a most careful consideration of the authorities. In doing so we have been somewhat embarrassed by an able opinion, recently published, rendered by a former judge of this same circuit, an opinion concurred in by all the judges then members of this court, for all of whom we have the highest personal and professional regard and whose opinions are always worthy of the highest consideration. The plaintiff in that case is the plaintiff in this case. The facts in the two cases are substantially identical. But the conclusion reached by the court as then constituted was directly opposite to that at which we have arrived.

We have read the opinion in that case with great care, but have been unable to agree with the conclusions there reached.

It may not be amiss to consider in conclusion the effeet of a contrary view. Under that holding the brewing company— merely because it is a manufacturer- — might establish in each county in the state and in each town in each county, a depot of supplies. Its agents might there conduct what is in all essential respects a wholesale business and without taxation — a privilege denied to all other wholesalers of beer.

From these depots, beer might be delivered continuously to all retail customers and new orders continuously taken, provided only that formal blanket orders have previously been taken and approved by the home office and the price subsequently collected by some one other than the manager of the depot of supplies — the cold storage house.

The brewing company might thus by a simple subterfuge get around the law and conduct a limitless number of subsiduary wholesale houses without taxation — just what the law prohibits in all others.

B. F. Enos and Donovan & Warden, for plaintiff.

T. A. Conway, for defendants.

We do not think that such an' interpretation of the law is consistent either with the decisions of our Supreme Court or with the spirit of the law or even with its letter.

The finding of the court will therefore be in favor of the defendants; the injunction dissolved. Judgment against plaintiff for costs; execution awarded and the cause remanded for execution.