author: Jones, Oliver B., P. J.

text:
    Burgan v. Siegman et al.

      Evidence — Ancient documents — Plats, written instruments and tax bills — Admissible to. prove disputed boundary line, when — Error to charge jury — No evidence to sustain defense.

    1. In an action for the possession of real estate, which arose out of the proper location of defendant’s lot, where the witnesses disagree as to the data from which a survey should be made, it is error for the court to refuse to admit in evidence certain plats made by a former owner of the property, which included the lot in question.
    2. It is error for the court in such case to refuse to admit in evidence written agreements made by the heirs of a former owner of the property which included the lot in question, where the agreements set out the sizes of the lots apportioned thereunder.
    3. A plat containing the handwriting of a former owner of property, and which came from the custody of the executor of such person, is admissible in evidence as an ancient document, even though such plat was not duly acknowledged or recorded.

      4. A letter and list of property furnished the county auditor; after the original records had been destroyed, which showed the taxable property of a former owner of the property as well as the tax bills for such property, are admissible in evidence as ancient documents, for the purpose of indicating the size and description of certain lots.
    5. Where no evidence is offered to sustain a defense it is error for the court in its charge to submit such defense to the jury.
    (Decided April 7, 1917.)
    Error : Court of Appeals for Hamilton county.

      Messrs. Lorbach & Garver, for plaintiff in error.

      Mr. John O. Eckert, for defendants in error.
   Jones, Oliver B., P. J.

This is an action for the possession of real estate, formerly known as an action in ejectment, for the recovery of a strip of land fronting 14.78 feet upon the northerly side of Harrison avenue in what is known as the Joseph A. James’ Subdivision of Fairmount.

The dispute between the parties arises because of a difference between surveyors as to the true lines of defendants’ lot. Plaintiff in error wag plaintiff below, and claimed that defendants’ house encroached upon her lot 'something over fourteen feet, and asked for possession of her real estate together with damages for its unlawful detention. The defendants in their answer insisted that they were within their own lines and did not encroach upon plaintiff’s lot; and for a second defense set up the 'Statute of limitatipns and claimed that the plaintiff was barred by reason of adverse possession on their part for more than twenty-one years.

The trial resulted in a verdict for defendants, and plaintiff prosecutes error here to secure a reversal of the judgment entered upon that verdict.

In regard to the claim of adverse possession and the statute of limitations, it is conceded by counsel for defendants in error that the evidence failed to establish adverse possession on . the part of defendants and their grantors for a period of twenty-one years. As the record failed to show any evidence of adverse possession for ,the full period of twenty-one years, it was error for the court in its charge to the jury to submit to them that question, but, instead, the court should have charged the jury that no evidence having been offered to sustain that defense it could not be considered by them.

The main question in the case was the proper location of defendants’ lot. Three surveyors testified on behalf of the plaintiff and one on behalf of the defendants. ' The difference between their testimony and their findings was because of the data from which their respective surveys were made. The real question to be determined in deciding between the parties is the correct location of the west line of what is known as “the forfeit” of section 25, township 3, fractional range 2 of the Miami Purchase.

None of the surveyors found monuments or lines marking the location of the forfeit line immediately north of Harrison avenue. The three surveyors for the plaintiff fixed the west line of the forfeit by taking monuments and occupation along that line located south of Harrison avenue and extending the line so fixed north of Harrison avenue. The surveyor for the defendants fixed the line of the forfeit by first finding, the east line of the section, and then by survey marking out a vertical forfeit line the exact number of feet west of and parallel to the section line that might be necessary to include one hundred and six and two-thirds acres in a perfect square. Evidence was offered to 'show that few if any of the -sections -as shown in the original survey of the Symmes Purchase were perfect squares, and that in most instances surveys of that early date showed a surplus in the lines.

The evidence shows that a ' tract of land containing 4.2 acres, of which the land here in dispute was a part, was conveyed to one William Barr, by a deed from Christopher Walker, dated April 1, 1820, that tract of land being triangular in shape and the east line thereof being the west line of the forfeit. This east line extended 7.50 chains along the west line of the forfeit, part of said east line being north of Harrison avenue (then Harrison pike) and part of it being south of said avenue. Plaintiff offered certain plats of subdivision made by William Bari* and his heirs showing a 'subdivision of land south of Harrison avenue, and also ‘showing a, small triangular tract north of Harrison avenue, part of said original Barr tract, which includes the property in question in this -case. At the -time 'these plaits of Barr’s subdivision were made the part lying north of Harrison avenue did not belong to Barr, but the title had passed into parties under -whom plaintiff claims. But both of these plat's of the subdivision delineated the west line of the forfeit extending along this plat.

The trial court refused to permit plaintiff to offer these two plats in evidence, being marked for identification “35” and “36.” We think the court committed prejudicial error in refusing to admit this evidence.

Plaintiff obtained title to her property — 'and her brother, under whom defendants claim, also obtained title to his lot — under the terms of the will of their father Joseph A. James. The real estate of Joseph A. James was divided among his children by virtue of his will under certain written agreements executed by them, and deeds were made pursuant to said written agreements. The trial court refused to permit the introduction of these agreements, which set out the sizes of certain lots apportioned thereunder. In this we think the court erred, because they were clearly relevant as muniments of title in' the chain of title of both plaintiff and defendants.

It appears from the evidence that a plat of subdivision of Joseph A. James, as -recorded in deed book 151, at page 415, was partially destroyed in the courthouse fire of 1884, and afterwards partially restored in the recorder’s office. This plat as introduced fails to show- >any subdivision of that part of the James property which had been formerly owned by William Barr ¡'and which constituted the small' (triangle north of Harrison avenue taken out of .the four-acre triangular lot whose east line was the west line of the forfeit. A lithograph plat, however, was offered in evidence by the plaintiff, which had come from the custody of the executor of Joseph A. James, and which contained his handwriting, and had been made for the purpose of selling lots of Joseph A. James’ subdivision of Fair-mount. This plat which is referred to as identification “5” in the record shows the Barr triangle lying north of Flarrison avenue divided into eight lots, marked with the letters of the 'alphabet from “A” to “FI,” and shows lot “A” as having a width of 31 feet, and lots “B” and “C” each a width of 25 feet. Defendants’ lot according to the description would be lot “C,” and plaintiff became the owner of lot' “A” under the division made of her father’s estate, and acquired lot “B” under the will of her brother Allen M. James, who 'acquired it in the division of her father’s estate. While all the surveyors agreed that they had not been able to find any record in the recorder’s office, or in the record of the courts, showing these lettered lots platted by Joseph A. James, they testified that there were plats in existence in the auditor’s tax plat and in the city engineer’s office, showing this division.

Under the rule as to the admission of ancient documents, in the opinion of the court, the plat' in question was admissible in evidence. While it might not carry the same weight as a duly acknowledged and recorded plat, still in the state of the record as developed by the evidence it was proper to permit plaintiff to introduce it for such weight as it might have.

The same ruling would also apply to identifications containing the letter and list of property furnished the auditor after the courthouse fire, showing the taxable property of the Joseph A. James estate for the purpose of indicating the size 'and description of lots; and also to (the tax bills offered for the same purpose.

A question somewhat involved among the surveyors, and as to which there is a discrepancy in the evidence, is the width of lot No. 56 of Joseph A. James’ subdivision. This lot as shown by the restored plat in deed book 151 is marked with a width of 25 feet, while as shown in the deed description, the tax list arid the tax bills, as well as in the agreement as to the division of the Joseph A. James property, it is fixed at á width of 37 feet. The surveyor of the defendants construed the plat'of Joseph A. James’ subdivision, because it showed a dotted lirie along the west' line of lot 56, as showing it to be the west line of the forfeit, but there is nothing to indicate such to be the fact upon the plat offered; while on the Barr plat showing the east line of lot “A” — or rather lot 1 of Barr’s subdivision, which is the same straight line as the east line of lot “A” — it is marked upon the two plats from the recorder’s office which were refused by the trial court, and also upon the plat from the surveyor’s office of the Barr subdivision shown in Exhibit 4 which was admitted.

A careful consideration of the whole record convinces the court that the verdict of the jury was contrary to the weight of the evidence.

For the reasons given the judgment below is reversed and the cause remanded for a new trial.

Judgment reversed, and; cause remanded.

Gorman and Hamilton, JJ., concur.


source: Caselaw Access Project

author: Gorman, J.

license: Public Domain

text:
    Rouda v. The Lowry & Goebel Co.

      Master and servant — Scope of employment — Liability to third person— Assault by employe collecting account — Pleading.

    1. An employer is liable for injuries resulting from an assault made by his employe upon a third person where such assault was made by the employe in the course of his employment for the furtherance of the employer’s business, or pursuant to either express or implied authority given such employe by the employer.
    2. A petition which alleges that one, a collector of the defendant, who was in the employ of the defendant in the collection of accounts from customers of defendant, while carrying out the course of his employment in the collection of claim®, called at the home of plaintiff and because plaintiff refused to- pay him the amount of money due defendant did then and there wrongfully, illegally and with great force assault plaintiff, and that said assault took place in the home of plaintiff while said employe was working in his capacity as a collector for said defendant, states a cause of action.
    (Decided March 26, 1917.)
    Error: Court of Appeals for Hamilton county.

      Mr. John C. Rogers, for plaintiff in error.

      Mr. Horace A. Reeve, for defendant in error.
   Gorman, J.

The plaintiff, Joseph W. Rouda, commenced an action in the superior court of Cincinnati against the defendant, claiming damages for personal injuries which resulted to him through two assaults made upon him on different' occasions by an employe and servant of the. defendant company.

In-his first cause of action the plaintiff sets out:

“That on or about the 15th day of October 1915, one of the collectors of the' said defendant' com-party, who was in the employ of the defendant in the collection of accounts from various customers of the said defendant company, while carrying, out the course of his employment in the collection of claims, called at the home of this plaintiff, and because said plaintiff refused to pay said collector the amount of money due said defendant company said employe did then and there wrongfully, illegally and with great force assault this plaintiff by striking him with his hands'" and fists upon the face, chest and other parts of the body; said assault took place in the home of said plaintiff while said employe was working in his capacity as a collector for said defendant company.”

In his Second cause of action plaintiff sets out:

“That on or about the 29th day of March, 1916, said' employe, in company with another employe called upon this plaintiff for the purpose of collecting the balance of the claim due said defendant company, and without giving plaintiff opportunity to pay said claim and without any good reason therefor, wrongfully, illegally and with great force assaulted plaintiff by striking him with his hands and fists upon the right side of his face and jaw and other parts of his body. This assault took place in the office of the place of business of said plaintiff, while plaintiff was engaged in his usual occupation and while said collector was working in his capacity as a collector for said defendant company.”

Plaintiff then sets out his injuries, and asks for $2,500 as damages.

To this petition the defendant interposed a general demurrer on the ground that the petition does not state a cause of action against the said defendant. The demurrer does not go specifically to the first and second causes of action, but to the petition as an entirety.

The superior court' sustained this- demurrer, ordering the defendant to go hence without day. It further ordered that the petition of the plaintiff be dismissed at 'his costs. Plaintiff duly excepted to this judgment. The entry does not set out that the plaintiff did not desire to plead further, but presumably that was the situation.

Plaintiff prosecutes error to this court and asks for a reversal of the judgment of the superior court.

As to the second cause of action, we are of the opinion that the plaintiff failed to set out facts sufficient to constitute a cause of action. There is an absence of an averment in the second cause of action that the assault made by the employe of the defendant was done in the course of the employment or while carrying out the course of defendant’s business. From all that appears in this cause of action the assault made by the employe of defendant was not in the furtherance of defendant’s business, and not for the purpose of enforcing ' the collection of a claim. A reference to the averment above quoted shows that the employe called to collect the balance of a claim, and assaulted the plaintiff with great force and violence; non constat the assault made would imply some personal animosity or ill-will of the defendant. In order to make a good cause of action it w-as necessary' to aver that the assault made by the employe of the defendant jwas in the course of his employment for the furtherance of the employer’s business, or pursuant to either express or implied authority given to him by the defendant company.

As to the first cause of action, we are of the opinion that the averments of the petition relative to it are sufficient to require an answer from the defendant company. The averment in this cause of action set out in the petition is that the assáult made by the employe of the defendant was done “while carrying out the course of his employment in the collection of claims,” etc. In other words, that the employe while carrying out the course of his employment illegally, wrongfully and with great force and violence assaulted the plaintiff.

It was held in the case of The Nelson Business College Co. v. Lloyd, 60 Ohio St., 448, in the first paragraph of the syllabus:

“An employer is liable' for the willful or malicious acts of his servant done in the course of the servant’s employment'.”

The averment of the petition in that case, as shown by report thereon on page 452, was:

“That the janitor being then and there engaged in the performance of his duties as such, ‘assaulted • the plaintiff and violently, wrongfully, recklessly and carelessly caused a ladder on which he was lawfully engaged at work in the school room of the defendant, to be overturned’ whereby be was violently thrown to the floor and seriously injured.”

The language employed by the plaintiff in the instant case is not perhaps the best that could be employed to convey the idea that the assault made by the employe of the defendant was done in pursuance of his employment, or in the course of his employment, or while engaged in the performance of his duties, and as a part of his duties; but we think that it would not be just and fair to indulge in hairsplitting as to the language employed, and that the language used in the first cause of action set out in the petition, giving to it its ordinary, plain meaning, is that the assault was made upon the plaintiff by the employe of the defendant while that employe was engaged in the performance of his duties in the scope of his employment, and in the course of his employment, and in furtherance of the business of the master, the defendant.

In the' Nelson Business College case there was no- demurrer filed to the averments of the petition, but upon the evidence adduced by the plaintiff showing substantially the facts set out in the petition the court held that it was a proper case to go to the jury for determination whether or not the employer could be held liable.

The trial court seems to have decided the instant case on the demurrer, upon the authority of The Little Miami Railroad Co. v. Wetmore, 19 Ohio St., 110. But we think the court in the Nelson Business College case, supra, on page 454, distinguished the Wetmore case from the case which the court had there under consideration. Upon that page the court says: *

"There was some evidence that the janitor had an ill-will against the plaintiff, and availed himself of this opportunity to injure him. If this were so, and the act was 'done with no other purpose, it was a clear departure from his employment,. and the master is not liable. Railroad v. Wetmore, 19 Ohio St., 110. Whether the act was done with this purpose or not was certainly a matter for the jury to determine upon a consideration of all the evidence. The manner and character of the witnesses testifying in this regard, might largely influence the jury in arriving at a conclusion on the subject.”

It is urged by counsel for the defendant in error that there can be no liability on the part of the master for the assault of a servant or employe, unless' the assault was made by the employe under either express or implied authority. In this case there is no averment of any express authority to commit the assault upon plaintiff on the part of the defendant, nor do we think that the nature of the employment, to-wit, the collection of a claim, implies any authority upon the part of the servant or employe to commit an assault upon the debtor for failure to pay the claim; so that if this be the corre'ct rule and test of the liability of the master this master is not liable. But we think that if this ever was the rule, it is not now considered by the best authorities the determining factor in cases of this character.

2 Mechem on Agency (2 ed.), Section 1960, lays down this rule:

“It has been held in a great variety of cases that the master is liable for the wanton or malicious acts of his servant if they were committed while the servant was acting in the execution of his authority and within the course of his employment. When this has been said, however, the problem is by no means solved, for the difficult question always remains as to what acts may be deemed to be within the course of his employment within the meaning of this rule. As in the' case already considered of the master’s liability for the negligent acts of his servant, it is impossible to lay down any hard and fast rule by which this question can be determined. In many cases no better definition can be given than the words themselves suggest. But, in general terms, it may be said that an act is within the course of employment if (1) it be something fairly and naturally incident to the business, and if (2) it be done while the servant was engaged upon the master’s business and be done, although mistakenly or ill-advisedly, with a view to further the master’s interests, or from - some impulse or emotion which .naturally grew out of or was incident' to the attempt to perform the master’s business, and did not arise wholly from some external, independent and personal motive on the part of the servant to do the act upon his own account.”

Now, applying this doctrine to the case under consideration, manifestly the master would not be liable under the first condition, that the act was something fairly and naturally incident to the business, because it can not be claimed in .this case that it was fairly and naturally incident to the business of the collector to assault the debtor for his failure to pay. But, under.the second proposition, if done while the servant was engaged upon the master’s business — and the averment of the petition is to that effect — was it done with a view to furthering the master’s interests ? The petition avers that the assault was made because the debtor refused to pay, and we can very well see that an ardent and enthusiastic collector might well suppose that an 'assault made upon the debtor would result in producing the money to pay the claim. He may have been prompted by some impulse or emotion growing out of the failure to secure the money to pay the claim; but, as said by Mec'hem, that would not render the master immune. Or he may have been prompted by a mistaken or ill-advised notion that this assault upon the debtor would conduce to the collection of the claim. However that may be, it appears to us that this is a sound rule laid down by Mechem, and under the averments of the petition it may be shown that the assault was made by the servant under a mistaken 'belief that he was serving his master. °

It has been said in some cases that the master is liable for the malicious and wilful acts of his servant done in the course of his employment, even though they were expressly forbidden to be done, upon the theory that the master is responsible not only for the acts of his servant, but also responsible for the manner in which the servant performs his duty. The 'servant’s act in punishing, persons who annoy him in the performance of the servi.ce, or who interfere with or injure the master’s property, or his own gratuitous act in using personal violence as a means óf coercing the performance of contracts or the payment of debts due the master, has been held in some instances to hold the master liable.

In the case of The Stranahan Brothers Catering Co. v. Coit, 55 Ohio St., 398, the supreme court held that the master was liable for the malicious acts of his servant whereby others were injured, if the acts were, done within the scope of the employment and in the execution of the service for which he was engaged'by the master. Nor will» it be any excuse or render the master less liable because the servant who did the malicious act was prompted by malice toward his employer and his action was to gratify his personal malice and with an intent to injure his employer.

In the case of Gill v. Columbus Railway & Light Co., 91 Ohio St., 435, the supreme court, in reversing the final judgment of the court of appeals, employed this language in the journal entry:

“This court finds that the fact (as shown by the special findings of fact made by the jury in connection with the general verdict) that plaintiff had alighted from the car of the defendant and had started toward the curb at the time he was assaulted by the employe of the defendant was not conclusive as matter of law, that the plaintiff had then ceased to be a passenger of the defendant, but the issue on that question as made by the pleadings was one of fact to be determined by the jury from all the evidence under proper instructions of the court, and this court, therefore, finds that the court of appeals erred in rendering final judgment in said cause in favor of the said railway and light company.”

In the case of Blakely v. Greer et al., 7 C C., N. S., 169, a demurrer was interposed in the trial court. The petition sought to recover for an assault made by the employe of the defendant •whereby this employe shot the plaintiff with a pistol which was given to .him by his employer for the purpose of protecting the employe against burglars and robbers. The plaintiff had occasion to go into the depot building where the employe was stationed; on business, and while entering the place he was shot by the employe of the defendant. The demurrer interposed to the petition was sustained by the trial court and this judgment was reversed by the circuit court of Allen county. In the opinion, at page 172, the court distinguishes the Wet-more case, supra, from the case' under consideration, and quotes some of the language of Judge Minshall in Nelson Business College Co. v. Lloyd, supra, as follows:

“Notwithstanding some earlier cases, it is, we think, clearly settled that the master is liable for the willful, or even malicious, as well as negligent acts of the servant, done in the course of his employment and within the scope of his authority.”

A master is liable for the negligent acts of his employe done in the course of his employment, whether they were authorized or not authorized. To be sure, no master expressly authorizes his servant to be negligent, nor can there be any implied authority upon the part .of the master to the servant that he, may be negligent;' nevertheless the master is held liable for the negligent acts of his servant although they be not expressly or impliedly authorized. And why should a different rule prevail with reference to wilful acts of• the servant?

In the case of Bucken v. South & Western Ry. Co., 157 N. C., 443, it was held that the master, a railway company, was liable for the wilful and malicious acts of its foreman and superintendent for an assault and battery made upon an employe of the company, which was made for the purpose of endeavoring to 'compel the- employe to pay a' claim which the foreman .and superintendent said was due to the master company.

In the case of Bergman v. Hendrickson et al., 106 Wis., 434, the master, the owner of a saloon, was held liable for an assault committed by the bartender upon a customer, made for the purpose of collecting pay from the customer for liquor sold to this customer; and it was thus held notwithstanding the fact that the barkeeper was expressly prohibited from performing his duty in that manner. The court, on page 436, says:

“If Baekstrom [the barkeeper] committed the assault for the purpose of collecting payment for his master’s liquor,, he was within the scope of his ■employment. It was his method of performing the duty delegated to him, and, although the method may not 'have been either expressly authorized or even ’contemplated, — nay, although it may have been expressly prohibited, — yet the master is liable for the damages caused thereby, provided he has intrusted to the servant the duty he was attempting to perform.”

In the case of McClung v. Dearborne, 134 Pa. St., 396, it was held that the master was liable for an assault made hy his servants in the house of the plaintiff, where the servants had gone for the purpose of removing an organ belonging to their employer, the defendant. The servants entered and took the organ by force and violence, and committed the assault in so doing. The master was held liable for the trespass although in committing it the servants violated his express instructions.

In view of the authorities cited we are of the opinion that the trial court erred in sustaining the demurrer. For the reasons stated the judgment will be reversed and the cause remanded for further proceedings.

Judgment reversed, and cause remanded.

Jones, P. J., concurs.

PIamilton, J., dissents.


author: Houck, J.

text:
    Simpson et al. v. The Incorporated Village of Johnstown.

      Adverse possession — Streets and alleys — Prescriptive title of abutting owner — Injunction against municipality.

    Where an abutting owner on a platted street or alley takes possession of that part of the way upon which his premises front and includes it within the boundaries of his land and exercises all the rights and privileges incident to ownership for a period of more than twenty-one years, title ripens in him, and an action lies restraining the municipality from interfering with his possession.
    (Decided March 15, 1918.)
    Appeal : Court of Appeals for Licking county..

      Messrs. Kibler & Kibler and Messrs. Fitzgibbon, Montgomery & Black, for plaintiffs.

      Messrs. Stasel & Cornell, for defendant.
   Houck, J.

- The plaintiffs bring this action against the incorporated village of Johnstown, in which they seek to restrain said village from taking possession of and opening up certain alleys and streets in said village.

The plaintiffs set forth in their petition that they are the owners of the alleys and streets in question by reason of the fact that they and their predecessors in title have had the open and uninterrupted possession of the same for more than twenty-one years. In the answer there is a general denial of all the material allegations in the petition, and, further, as an affirmative 'defense, the answer says that by reason of certain plats filed by the original owner of said land prior to the year 1840, as well as by certain acts of the legislature of Ohio, the title in and to said alleys and streets claimed by plaintiffs now vests in the state of Ohio, and therefore the statute of limitations, as claimed by plaintiffs, cannot be invoked.

We have reviewed the evidence in this case with much care, and we are of the opinion that the claims made by the defendant are not borne out by the evidence in the case. On the other hand, we find from the evidence that the alleys and streets in question were never used by the public, and that for a period of more than sixty years they have been used and occupied, and fenced in, by those who were the holders of the paper title to said lots, and that in a number of instances buildings have been constructed upon the alleys and streets claimed by plaintiffs.

We further find the evidence to be clear and convincing that the plaintiffs, and their predecessors in title, for many years beyond the period of twenty-one years have been in possession of said streets and alleys. We think the law in this state is well' settled that the occupation by abutting owners of a street', by taking possession of the whole, including it within the boundaries of their land, using it and occupying it as a part of their premises, cultivating and tilling the same,, exercising all of the powers incident to ownership thereof, and selling and conveying the same to purchasers for a valuable consideration, establishes adverse possession, and that if such possession has been for a period of more than twenty-one years it ripens into title. If this be the law, and if we apply it to the conceded facts in the case in hand, we are bound to find for the plaintiffs. Section 11220 of the General Code provides:

“If a street or alley, or any part thereof, laid out and shown on the recorded plat of a city or village, has not been opened to the public use and occupancy of the citizens thereof, or other persons, and has been enclosed with a fence by the owner or owners of the inlots, lots or outlots lying on, ■adjacent to or along such street or alley, or part thereof, and has remained in the open, uninterrupted use, adverse possession and occupancy of such owner or owners for the period of twenty-one years, and if such street, alley, inlot' or outlot is a part of the tract of land so laid out by the original proprietor or proprietors, the public easement therein shall be extinguished and the right of such city or village, the citizens thereof, or other persons, and the council of such city or village and the legal authorities thereof, to use, control or occupy so much of such street or alley as has been fenced up, used, possessed and occupied, shall be barred, except to the owners of such inlots or outlots lying on, adjacent to or along such streets or alleys who have occupied them in the manner aforesaid.”

From an examination of this section of the statute we are fully convinced that it is clearly applicable to the proven facts in the case at bar and is decisive of the case.

It therefore follows, from what we have already said, that the plaintiffs are entitled to the relief prayed for 'in their petition.

Decree and judgment accordingly.

Powell and Shields, JJ., concur.


author: Wilson, J.

text:
    Board of Commissioners of Butler County et al. v. The State, ex rel. Davis, Auditor.

      County commissioners — Fixing compensation of assistants to auditor — Funds not available — Refusal to comply with court’s order — Borrowing money and issuing certificates — Section 5548, General Code (107 O. L., 38, 40), construed — Assessment of realty for taxation.

    1. The act of county commissioners in fixing and determining an amount to be expended by the auditor in the employment of expert assistants, clerks, etc., for the purpose of making a new appraisement of taxing districts for the year 1917 constitutes the fixing and appropriating of a certain sum out of the general funds of the county to be expended by the auditor for that purpose, and the fact that there were no county funds available at the time the commissioners were ordered by the court to make such appropriation, out of which an appropriation could have been made for the purpose, constitutes a valid, excuse for failure to comply with the court’s order.
    2. Section 5548, General Code (107 O. L., 38, 40), relating to the assessment of real estate for taxation, provided only for raising the necessary money with which to defray the expense of making up a valid duplicate for the year 1917, and county commissioners were without power under this section, on March 4, 1918, to borrow money and issue certificates of indebtedness with which to pay the expense of making up a duplicate for 1917.
    (Decided July 1, 1918.)

      Error: ■ Court of Appeals for Butler county.

      Mr. B. A. Bickley, prosecuting attorney; Mr. M. O. Burns and Mr. Ben. T. Harwitz, for plaintiffs in error.

      Messrs. Andrews & Andrews, for defendant in error.
   Wilson, J.

On or about April 21, 1917, the relator, the auditor of Butler county, Ohio, requested the board of county commissioners to fix and determine the amount to be expended by relator in the payment of compensation for expert assistants and clerks, and other employes, to enable said relator to make an appraisement for purposes of taxation of certain taxing districts in Butler county, in the sum of $12,000. The commissioners refused to fix and determine the amount at the sum of $12,000, and refused to fix and determine any amount.

On May 21, 1917, the relator filed suit in the common pleas court of Butler county against the county commissioners of said county, alleging the foregoing facts, and asking that a writ of mandamus issue commanding said board to fix and determine the amount to be expended by relator for the purposes of said appraisement. And on October 20, 1917, said court on consideration of the petition of the plaintiff, the answer of the defendant, and the evidence, ordered and adjudged that a peremptory writ of mandamus issue against said 'board of county commissioners, commanding that “within ten days after service of this writ said board of county commissioners fix and determine the amount to be expended by said auditor for the compensation of said expert assistants, clerks and employes, and for maps, plats, books, lists of transfers, and other things necessary to be provided in order to assess and appraise the real estate in each and all of said subdivisions.”

From this judgment an appeal was taken by the •county commissioners, on November 13, 1917, to the court of appeals, and in said court the relator, defendant in error, filed a motion to dismiss the appeal. By consent of counsel and parties it was agreed that said board of county commissioners need not act on said writ' until after said court of appeals had passed on the motion to dismiss said appeal. In February, 1918, said appeal was dismissed, and thereafter on March 4, 1918, the relator caused an alias peremptory writ of mandamus to be issued and served upon said board. It thereupon, on said March 4, 1918, became the duty of •the county commissioners to act in compliance with the order of court by fixing and determining the amount to be expended by the relator for the purpose, or to refuse to comply with the order. The commissioners refused to comply with the order of court', for the reasons set forth in their answer filed in these proceedings of contempt.

■ 'On March 22, 1918, charges of contempt were filed in the common pleas court by Quincy A. Davis, auditor of Butler county, charging .the county commissioners with having failed, neglected and refused to obey the order of the court. Answer was filed by the commissioners setting forth as reasons for having declined to comply with the order of the court: (1) that they were unable at that time to appropriate any sum of money for the purpose, for the reason that all public moneys derived from taxation had been theretofore appropriated and that there were no further funds unappropriated; (2) that they were advised that no authority existed at that time to issue bonds to raise money for that purpose; and (3) that the year 1917 had passed, and as a taxing year was at an end, the said reappraisement asked for the year 1917 would be a nullity.

A hearing of said charges was had, and the court found “that by law they [the commissioners] have sufficient authority to perform the duty and carry out the acts which said defendants were commanded to do in said writ by this court,” and that by their refusal they “have placed themselves in a position of disobeying the orders of this court” and are therefore in contempt of court, and ordering that they comply within ten days with the former order of the court and in default thereof be committed to the jail of Butler county until they comply with such orders.

Error from that finding and' judgment has been prosecuted to this court.

The judgment of the common pleas court awarding a peremptory writ of mandamus is a finality, and the only question now presented for the consideration of this court is, as this court interprets the record, whether or not there was any justification or valid excuse on the part of the county commissioners for their refusal to comply with the mandatory writ issued by the court.

The court below found and so held that “by. law they [the county commissioners] have sufficient authority to perform the duty and carry out the acts which said defendants were commanded to do in said writ.” Could the county commissioners, at that date, have lawfully fixed and determined the amount to be expended by the auditor in the employment of expert assistants, clerks, etc., for the purpose of making a new appraisement of taxing districts for the year 1917? Counsel in the case do not seem to agree as to the 'force and effect, or nature and character, in law, of such an order when made by the commissioners.

To the mind-of the court such an order could be nothing more nor less than the fixing and appropriating of a certain sum out of the general funds of the county to be expended by the auditor for that purpose. If it were not an appropriation, of what avail could such an order be? If the fund were not appropriated the auditor -could not proceed to employ assistants, and incur obligations therefor, which would be 'binding upon the county, and certainly the law and the court should and would not require them to do a vain thing — to perform an act which when performed would be a nullity.

It is very evident that the auditor understood it to be an appropriation that he was asking for. The defendant in error offered in evidence a communication from the auditor to the county commissioners (record, page 3) under date of February 19, 1918 (fourteen days prior to the issuing of the writ of mandamus), in which the auditor states: “Pending the decision of the ‘Circuit Court in re the decision in Mandamus rendered by Judge Kyle against your Board ordering an appropriation to be made to defray the cost and expense of a reappraisal of the real estate,” etc., “do therefore ask your Board to appropriate the sum of $12,000.00 to defray the cost and expense of a reappraisal.”

' The contempt charged is that “on the 4th day of March, 1918, this relator caused an alias writ of peremptory writ of mandamus to be issued and to be served on said board of 'county commissioners, all of which was duly done and that thereupon said board of county commissioners in open session passed a resolution to the effect that they would not obey said peremptory writ of mandamus and would not do and perform any of the acts therein commanded by this court that they should do. That the members of the board of county commissioners thereby contemptuously ignored and disobeyed the order of this court, and the said members of said board of county commissioners are therefore in contempt of this court.”

The auditor testified on the hearing of these contempt proceedings (record, 1) as follows:

“Q. How long would it take you to prepare such a statement, showing any surplus in any funds in Butler County, Ohio, that is unappropriated ?
“A. Under what date?
- “Q. The fourth of March, 1918?
“A. The money was all appropriated on the 4th day of March. But before that there was money not appropriated; when this writ of mandamus was given the money was not appropriated.”

In other words, at the date when the commissioners are charged with having violated the order the auditor testifies there was no unappropriated fund from which such appropriation could have been made.'

The court is therefore of the opinion that the fact that there were no county funds at that time available out of which an appropriation cquld have been made for the purpose constitutes a valid excuse for the failure to comply with the court’s order.

The second excuse offered by the commissioners, viz., that no authority existed at that time (March 4, 1918) to issue bonds to raise money for that purpose, calls for the construction of Section 5548, General Code, relating to the assessment of real estate for taxation, 107 Ohio Laws, 38, 40, where it is provided as follows:

“If, upon the taking effect of this act there are not sufficient funds in the treasury of any county to provide for the requirements of this section for the year 1917, the county commissioners may borrow the amount so required, and issue certificates of indebtedness therefor, payable not later than three years from the date thereof,” etc.

The legislature undoubtedly intended thereby to make provision for raising the necessary money with which to defray- the expense of making up a valid duplicate for the year 1917 in counties where funds were-not available for that purpose. It had no reference to duplicates for succeeding years, as ample provision is made by law for raising such funds by taxation and appropriation, which provision, however, could not have been availed of by the county officials for the 1917 duplicate, owing to the fact that the present act providing for the assessment of real estate for taxation was not passed until March 21, 1917. On March 4, 1918, the tax duplicáte for 1917 for Butler county had been made and delivered to the treasurer and he had collected one-half of the 1917 taxes thereon. It was therefore beyond the power of the auditor to make another and a different duplicate for 1917 at the time the commissioners are charged with refusing to make an appropriation for that purpose.

The court is therefore of the opinion that the commissioners were on March 4, 1918, without power and authority under said act to borrow money and issue certificates of indebtedness with which to pay the expense of making up a duplicate for 1917, and for that reason' also they should be excused from making the appropriation ordered under said writ.

It appears from the record (page 3) that the auditor of Butler county on February 19, 1918 (fourteen days before the act of contempt was alleged to have been committed), requested an appropriation by the commissioners for certain amounts to cover the expenses to be incurred in his office for the six months beginning March 1, 1918, in conformity with statutory requirements, and that among the items enumerated was one for “Reappraisal real estate Butler County, $12,000.” Counsel for relator in his brief (page 6) says: “At the 'time the budget committee met for the levy for 1918 it had, we may presume, in the orderly course of official duty, before it this very expenditure and provided 'for it” In other words, provision has been made for the doing in 1918 of the very thing that was sought to be done in 1917, and the appropriation of $12,000 therefor has been made. That being so, if the commissioners were now required to make an appropriation for that purpose under the writ of mandamus, it would be twice appropriating funds of the county for that purpose, which in itself would be an illegal act and would in law constitute a misappropriation of public funds.

The commissioners were on March 4, 1918, advised that the auditor had on February 19, 1918, requested them to make an appropriation of $12,-000 for the same purpose, in the budget of expenses of his office submitted to the commissioners on that date.

The court is constrained therefore to hold that it was beyond the power of the commissioners on March 4, 1918, to make the appropriation called for by said writ and thereby comply with the order of the court, and that such want of power constituted a good and valid excuse for their failure to obey said .order, and that said board of county commissioners and the members thereof should not be held in contempt of said order.

It is therefore ordered by the court that the judgment and order of the court' below in finding them guilty of contempt, and the imposition of a penalty therefor, be reversed, and that the complaint be dismissed.

Judgment accordingly.

Jones, P. J., and Hamilton, J., concur.

      See post, 299, for opinion dismissing appeal.—Reporter.


author: ■By the Court.

text:
    Hughbanks v. Browning.

      Uniform Sales Act — Purpose and scope — Section 8448, General Code — Specific performance — Court may order delivery of specific goods, when — Defense by seller — Goods damaged by storm — And condition not as per contract.

    1. The Uniform Sales Act was passed for the purpose of codifying and" declaring in statutory form the common law as it then existed in this and other states, and also to modify and extend it where necessary or proper, to provide a uniform law of sales that would be common to all states adopting it.
    2. Under'Section 8448, General Code, which gives a court of equity power to decree specific performance of a contract to deliver specific or ascertained goods, the trial court has the power to decree an enforcement of the sale, where the purchaser demands that sort of relief and the court finds it to be equitable and . proper.
    3. It is no defense to an action to compel the delivery of a specific ascertained crop of tobacco to allege that because of injury to the tobacco by a storm it does not meet the terms of the contract as to its condition, where the buyer is willing to take it and pay the agreed price.
    (Decided November 3, 1917.)
    Error: Court of Appeals for Butler county.
    . Mr. W. A. Hicks; Mr. J. C. Slayback and Mr. D. P. Wayne, for plaintiff in error.

      Mr. M. W. Manaman; Mr. L. L. Mans on and Messrs. Andrews & Andrews, for defendant in error.
   ■By the Court.

This case involves the construction of Section 8448, General Code, as to the power of a court of equity to decree specific performance of a contract to deliver specific ■ or ascertained goods. This section of the General Code is Section 68 of the Uniform Sales Act, passed May 9, 1908, to take effect January 1, 1909 (99 O. L., 413). Section 8448; General Code, is as follows:

“When [where] the seller has broken a contract to deliver specific or ascertained goods, a court having the powers of a court of equity may, if it thinks fit, on the application of the buyer, by .its judgment or decree direct that the contract shall be performed specifically, without giving the seller the option of retaining the goods on payment of damages. The judgment or decree may be unconditional, or upon such terms and conditions as to damages, payment of. the price and otherwise, as to the court may seem just.”

The Uniform Sales Act was passed for the purpose of codifying and declaring in statutory form the common law as it then existed in this and other states, and also to modify and extend it where necessary or proper, to provide a uniform law of sales that would be common to all states adopting the same.

While it is true that courts of equity have heretofore as a general rule refused to decree specific performance of contracts for the sale of chattels, where compensation could be made in damages, and the parties have been left to their remedy at law, there are many cases where such contracts were enforced, usually depending upon the nature of the property sold, and specific performance was allowed -to enforce the sale of personal property of peculiar or extraordinary character, such as heirlooms, slaves, vessels, and in numerous other instances. In modern days there has been a tendency, outside of statute, to widen this jurisdiction of courts of equity in specifically enforcing contracts for 'the sale of personal property. It is said by Judge Story in his work on Equity Jurisprudence (14th ed.), Section 994:

“The truth is, that upon the principles of natural justice Courts of Equity might proceed much farther and might insist upon, decreeing a specific performance of all bona fide contracts, since that is a remedy to which Courts of Law are inadequate. *■ * * for it is against conscience that a party should have a right of election whether he would perform his covenant or only pay damages for the breach of 'it. But on the other hand there is no reasonable objection to allowing the other party who is injured by the breach to have an election either to take damages at law or to have a specific performance in equity, the remedies being concurrent but not co-extensive with each other.”

Interesting and instructive briefs have been filed by both sides upon the history and state of the law on this question, but for the purposes of this case it seems to be unnecessary for the count to enter upon any discussion, and it is sufficient to merely say that the language of this section of the law, as we now find it, clearly gives to the trial court the power to decree an enforcement of the sale, where the purchaser demands that sort of relief and the court finds it to be equitable and proper.

In this case the court below entered a decree requiring the defendant to deliver a specific ascertained cron of tobacco, which had been sold to the plaintiff at a specified price, and declined to entertain the defense made by the defendant that because of injury by a storm the tobacco would not meet the terms of the contract as to its condition,— evidently finding that if the plaintiff was willing to' take it in its damaged condition, and to pay the price asked, defendant had no cause to complain on that account.

A review of the record fails to disclose any error to the prejudice of plaintiff in error, and the judgment is therefore affirmed.

Judgment affirmed.

Jones, P. J., Gorman and Hamilton, JJ., concur.


author: Lieghley, J.

text:
    Baker v. Slusser.

      Elections — Corru,pt practices act — Expenditures by candidates — Judge of probate court — Invalidity of election.

    1. The provision of the corrupt practices act, which permits an expenditure of five dollars for each one hundred votes cast in excess of five thousand at the last preceding state election, is not supplementary to the ’ fixed maximum sums named earlier in the act as the,amounts which may be expended by candidates - for the several offices designated, and the expenditure by a candidate for probate judge of a sum in excess of five hundred dollars is in violation of that act.
    2. A prior conviction under the corrupt practices act is not requisite to a judgment invalidating the election of one shown to have been guilty of expending an unlawful amount' of money in promoting his candidacy, but the fact of such violation itself renders the election void, and a court will so declare.
    (Decided April 27, 1917.)
    Error : Court of Appeal's for Summit county. ■

      Mr. S. A. Decker, for plaintiff in error.

      Messrs. Musser, Kimber '& Huffman, for defendant in error.
   Lieghley, J.

. At the August 1916 primaries, defendant in error,. Slusser, was a candidate, with others, for the office of probate judge of Summit county. He received the highest number of votes and was declared to be the nominee.

Subsequently, and -within the required time, he ■filed his statement of expenditures with the Deputy State Supervisors- of Elections, showing an outlay of $746.47.

His name, with others, appeared upon the ballot used by the -voters at the November 1916 election, as a candidate for probate judge. At said election he received the highest number of votes. Subsequent to the election, but not within the required time, he filed with the Board of Elections his verified statement of expenses of said election, showing an additional outlay of $251.09. Thereupon -the Board of Elections declared him elected probate judge and issued to him a certificate of election. From this action of the board the plaintiff in error, as oontestor, under favor of Sections 5148 to 5153, General Code, perfected an appeal -to the common pleas court, with the object of contesting the election of defendant in error, the contestee, upon the claim that the amounts expended by said contestee are, under Section 5175-29, General Code,- in excess of the amount allowed by law to be expended for 'the purpose of promoting and securing his election as probate judge.

The' trial of the appeal in the common pleas court resulted in a dismissal thereof, from which judgment of dismissal error is prosecuted to this court.

It is claimed hy the contestor that the court below erred in the following particulars:

1. In sustaining the claim of contestee that the ■expenditure of said sums was not a violation of Section 5175-29, General Code.
2. That under the provisions of the act itself a judgment to the effect that his election was invalidated could only be predicated upon a prior conviction under Section 13323-1, General Code.

Section 26 of the corrupt practice act (Section 5175-26, General Code), clearly has for its purpose the enumeration of the various things for which money may be expended by a candidate, directly or indirectly, in promoting his candidacy. Section 29 of the act (Section 5175-29, General Code), by its express terms, refers to Section 26, and clearly has for its purpose the limitation of the amount which may be expended by a candidate directly or indirectly upon the matters and things enumerated in Section 26. Said Section 29 reads as follows: for governor, the sum of five thousand dollars; ¡by a candidate for other state elective offices the sum of two thousand five hundred dollars; by a candidate for the office of representative in congress or presidential elector, judge of the court of appeals, the sum of two thousand dollars; by a candidate for the office of state senator, the sum of three hundred dollars in each county of his district; by a candidate for judge of common pleas, probate or insolvency court, the sum of five hundred dollars; by a candidate for the officé of state representative the sum of three hundred and fifty dollars; by a candidate for any other public office to be voted for by the qualified electors of a county, city, town or village, or any part thereof, if the total number of votes cast therein for all candidates for the office of governor at the last preceding state election, shall be five thousand or less, the sum of "three hundred .dollars. If the total number of votes cast therein at such last preceding state election be in excess of five thousand, the sum of five dollars for each one hundred in excess of such number may be added to the amounts above specified. Any candidate for a public office who shall expend for the purpose above mentioned an amount in excess of the amounts herein specified shall be guilty of a corrupt practice.”

“The total amount expended by a candidate for a public office, voted for at an election, by the qualified electors of .the state, or any political subdivision thereof, for any of the purposes specified in section 26 of this act, for contributions to political committees, as that term is defined in section 1 of this act, or for any purposes tending in any way, directly or indirectly, to promote or aid in securing his nomination and election, shall not' exceed the amount specified herein; by a candidate

Certain public offices, state, district and county, are specifically mentioned, and a limitation of the sum of money that may be expended by any candidate therefor 'placed opposite each. It is claimed, however, that, although the sum fixed for a candidate for the office of probate judge is $500, the provision permitting the expenditure of $5 per each 100 votes in excess of a total vote of 5,000 at the last preceding state election is supplementary to the specific provision. After offices and amounts are named, it will be noticed that the section reads all candidates “for any other public office to be voted for by the qualified electors of a county, city, town or village,” etc. This language can convey no other meaning than it would if it carried after the word “other” the words “than those above mentioned.”

Next it is claimed that the next to the last sentence of the section beginning with the word “if,” in view of the fact that' the word “amounts” is used, indicates that the intention of the legislature was to permit the sum of $5 per each hundred votes in excess of 5,000 to be expended for election purposes over and • above the sums specifically named. If this claimed construction is right, necessarily the sentence qualifies the entire preceding sentence. That method of calculating would permit a candidate for governor to expend about $37,000; a candidate for this court over $10,000; a candidate for secretary of state, a two-year term, about $35,000, which is several times his salary for the term; and a candidate for common pleas judge in Cuyahoga county over $6,000. Can it be possible that 'the legislature intended to put such sinews of war in the hands of a nonpartisan judiciary for the purposes of political strife, which would necessarily attend the expenditure of such sums by the various candidates for judge? We think that this construction is in conflict with the apparent intention of the legislature in enacting the corrupt practice act, viewed with reference to the trend of public sentiment of late years, which eventuated in the enactment of the nonpartisan judiciary laws.

We think the sentence of Section 29 last above referred to qualifies only the language after the last semicolon and applies only to those offices and the amounts that may be expended by candidates for those offices which have not been specifically mentioned and opposite which no specific amount has been fixed by the legislature in the act. In short, we think that by law the contestee was obliged to confine his expenditures at or below the sum of $500.

The act was upon the statute books at all times while contestee promoted 'his candidacy. It was then the law of the state and he was obliged to observe its provisions. His attention was expressly called to the act a short time after the primaries. He then prepared a brief and mailed a copy to the voters, seeking to justify the violation. Can he be permitted to take advantage of his own wrong? He then proceeded to expend a further sum at the election in the promotion and furtherance of his candidacy. We regard the expenditure of the total sum of over $1,000 at the election before mentioned as constituting a violation of the corrupt practice act.

It is urged, however, that even though the expenditure of this sum amounts to a violation of the corrupt practice act, it does not work an invalidation of his election, for the reason that Section 29, which he violated, does not expressly provide that a violation of it invalidates the election; that Section 26 alone provides for invalidation of the election for a violation of its provisions.

It will be observed that Section 29 of the act expressly refers to Section 26. Section 26 enumerates for what money may be spent. Section 29, expressly referring to Section 26, provides how much may be spent. Section 29 must be read with reference to Section 26. And one who admits spending a sum in excess of the amount permitted under Section 29 for the purposes expressed in Section 26, is guilty of corrupt practice, and under the provisions of Section 26 invalidates his election.

It is further urged that proceedings must be had under Section 13323-1, General Code, resulting in conviction of corrupt practice, as a condition precedent to the invalidation of the election therefor. We think that all claims made in respect to this assignment of error are completely answered in the case of Prentiss v. Ditmer, 93 Ohio St., 314, at page 323, et seq.

This section, now a part of the criminal code, was in fact Section 32 of the corrupt practice act, and as stated in the opinion in Prentiss v. Ditmer, supra, the legislature evidently intended to provide two distinct remedies. • If a candidate violates Section 29 in and about the promotion and furtherance of his candidacy and election, he thereby invalidates 'his election, and the remedy is a contest of the election, the proceedings had in the instant case. In this case it is admitted that over $1,000 was spent, and we hold that that expenditure amounted to a corrupt practice on the part of the contestee; that the same invalidated his election; that he was not and is not the duly elected probate judge of Summit county, Ohio; and that under the circumstances in this cáse no prior conviction is necessary as a condition precedent to a judgment of invalidation of the election.

For the reasons given, it is held that said election is invalid; that said eontestee, Lewis D. Slusser, has no right and title to the office of probate judge; and a judgment of ouster is hereby entered.

Judgment reversed, and judgment of ouster.

Grant and Carpenter, JJ., concur.


author: Jones, P. J.

text:
    Robinson v. The Second National Bank of Cincinnati.

      Negotiable instruments — Defenses — Note given to accommodate bank — For increase in capital stock — Exceptions to ruling — Motions to direct verdict and to exclude evidence — General exception swfñcient, when.

    1. It is no1 defense to an action on a note given by the wife of a stockholder in a bank, for the proportion of an increase in the stock of said bank to which he was entitled, that she was induced to execute said note upon the assurance of the president of said bank that it was for the benefit of said bank and that she would not be required to pay said note or any part thereof.
    2. Where a court in one ruling decided motions to strike out certain evidence and for a directed verdict, “To all of which defendant by counsel then and there excepted,” such exception is+ sufficient to save an exception to the ruling of the court as to the striking out of the evidence. »
    (Decided April 16, 1917.)
    Error: Court of Appeals for Hamilton county.

      Messrs. Bettinger, Schmitt & Kreis, for plaintiff in error.

      Messrs. Jelke, Clark & Forchheimer, for defendant in error.
   Jones, P. J.

In November, 1908, action was taken by the directors of The Second National Bank, the defendant in error, looking to the increase of its capital stock from $500,000 to $1,000,000, giving all stockholders the right to buy three-fifths of the increase of this capital stock at $150 per share, the balance of it to be sold to the public at the market price, which was then $275 per share'. This increase was afterwards duly authorized.

The husband of the plaintiff was the owner of 60 shares of the capital stock of this bank, and, as such, under the arrangement, was entitled to subscribe for 36 shares at $150 per share. At that time, however, he was involved in litigation, and when spoken to on the subject by the president of the bank declined to subscribe for the stock in his own name. The president of the bank insisted that all of the directors should take the stock they were entitled to under the arrangement, because a failure to do so w'ould have a tendency, to depress the market price; and, after some conversation with Mr. Robinson and his wife, who was without means on her own account but who then had something over $500 on deposit in the bank to her credit, Mrs. Robinson agreed to and did subscribe for the 36 shares to which her husband would have been entitled, at the price fixed for shareholders, which amounted to the sum of $5,400. She drew a check upon her bank account for $500-and made a note to the bank for $4,900. The stock was issued in her name. She at the same time executed a power of attorney authorizing C. IT. Davis, then the president of the bank, to sell and assign this stock. It seems this arrangement was entered into upon the assurance of Mr. Davis that it would be for the benefit of the bank and that she would not be required 'to pay said note or any part of it and that the stock could be sold for more than enough to pay the note and to repay her $500.

It appears that for nearly three years the dividends on this stock were received by Mrs. Robinson, who paid interest on the note. Then the bank, being in failing circumstances, ceased to pay dividends, and this action was brought by the bank against Mrs. Robinson to recover on the note.

On the trial in the court of common pleas a directed verdict was had, and judgment entered for the bank. This proceeding in error is brought to set aside that judgment on the ground that the count erred in excluding all evidence 'to the effect that the president or any officer of the bank stated that Mrs. Robinson would never be called upon to pay the note, and all evidence to t’he effect that the stock was taken by Mrs. -Robinson for the accommodation of the bank; and that the court' erred in directing the jury to return a verdict for plaintiff for the amount sued on.

It is contended by defendant in error, as t'o the exclusion of testimony, that no exception was taken by counsel and therefore the objection can not be reviewed in this proceeding. This objection is a matter of form. The court, in one ruling, ruled upon 'both ‘the motion to strike out evidence and the motion for a directed verdict, after which ruling appears this language: “To all of which defendant by counsel then and there excepted.” While a distinct exception might have been stated in the bill of exceptions more particularly as to each 'separate item of the ruling, still the form in which the bill of exceptions appears is in our opinion sufficient to save an exception to the ruling of the court as to the striking out of the evidence.

. In our opinion, however, the court did not err in striking out this evidence.

The questions raised in this case in regard to the validity of the stock subscription and the liability of a stockholder upon a note given in payment of the stock subscription were discussed and passed upon by this court in Second National Bank v. McDonald, 2 Ohio App., 497.

Regardless of the fact that the record shows that Mrs. Robinson was' not acquainted with matters of banking, it is clear that she subscribed for the stock and executed the note with full understanding of the transaction, and would be liable for her subscription regardless of its purpose. (Bates v. Lewis, 3 Ohio St., 459.) She claims to have relied upon the statements of the officers of the bank, and because of that claims that 'her act was merely an accommodation to the bank itself and that that fact relieved 'her from liability. It is not clear from the evidence adduced by her whether the representation made by Mrd Davis, the president of the bank, was on behalf of the bank, or was a personal promise of his own to 'see that she would not be required to pay the note. If it were a- per- . sonal promise it would be entirely immaterial as a defense to this action. If it were a promise on ■behalf of the bank, in the absence of any showing that it was authorized by the board of directors, the president would have no authority to 'bind the bank. (Bank of U. S. v. Dunn, 6 Pet., 51, and Burke v. Smith, 16 Wall., 390, 394.) And if she made the subscription as a sham, merely for the purpose of enabling the bank to show to outside purchasers of new stock that the directors’ stock had all been subscribed for, still she would be ■liable. Pauly v. O’Brien, 69 Fed. Rep., 460, 461, and State, ex rel., v. Hills, 94 Ohio St., 171.

It is claimed, however, by plaintiff in error, that the ease of Westwater v. Lyons, 193 Fed. Rep., 817, is “on all fours” with the case at bar, and decisive of the question here at issue. In that ease a note was given by a stranger to a director of the 'bank, who endorsed it and used it with the bank in the payment of certain shares of the increased capital stock of the bank. Afterwards, objection being made by a bank examiner, to this note being carried as an asset of the bank, and the bank being required to substitute other paper or make good the note, a new note was procured by an officer of the bank, from a friend, as a matter of accommodation, to be substituted for or added to 'the original note for the purpose of complying , with the bank examiner’s requirements. In this case it appeared that Westwater, the maker of the second accommodation note, made such note purely as an accommodation for 'the use of the bank, after first receiving from its cashier a paper as follows:

“Pittsburgh, Pa., Feb. 23, ’of.
“Mr. James Westwater, 'Columbus, Ohio — Dear Sir: Your note for $37,500.00 for four months to •the order of H. R. Bean, received from Mr. MeKinnie this A. m. It is explicitly understood that there is no liability attached to you for this note, the same being used by Mr. McKinnie as a substitute for another note. We hereby agree to return the same to you at any time upon request without payment being made for the possession thereof. Very truly yours, D. J. Richardson, Cashier.”

1‘t was 'held in that case that it was for the jury to determine whether the endorser of this accommodation paper participated in the fraud perpetrated by the bank, and whether he signed for the accommodation of the bank or for the accommodation of its officers. Westwater who was sought to be held upon this second accommodation note had nothing whatever to do with the transaction in the bank. iHe gave the paper to his friend/the bank officer, with the distinct understanding that it was purely a matter of accommodation and that no liability should attach to him.

In the case at bar, whatever promise Mrs. Robinson had from Mr. Davis was in no way the obligation of the 'bank and could not be set up or relied upon as a defense to its action against her upon the note. We.do not regard the Westwater case as in any way controlling or décisive of this case, and think that there is no question as to the liability of Mrs. Robinson upon her note, and find no error in the record to her prejudice.

The judgment will be affirmed.

Judgment affirmed.

Gorman and Hamilton, JJ., concur.


author: Hamilton, J.

text:
    Krippendorf v. Bonte, Admx.

      Master and servant —Chauffeur kills pedestrian — Scope of employment— Automobile owner not liable, when — Preponderance of evidence — Charge to jury erroneous, when — Interrogatories to jury — Submission mandatory, when — Section 11463, General Code.

    1. A master is liable for the negligent act of his servant only where such act is committed by such servant while acting within the scope of his employment, and it is incumbent upon plaintiff to establish this fact by a preponderance of the evidence.
    2. The owner of an automobile is not liable for act of his chauffeur in killing a pedestrian where the car was used with the consent of the owner for the chauffeur’s own pleasure and convenience and not for any purpose, business or pleasure of the owner, and it is error for the court to refuse to so charge.
    3. In such case it was error for the court in its general charge on ■the question of liability of defendant to use the words in a disjunctive sentence “or by the permission of the defendant, then the defendant would be liable.”
    4. Under Section 11463, General Code, it is mandatory upon the court to submit interrogatories to the jury where they are proper and pertinent to the issue of the case.
    (Decided April 16, 1917.)
    Error: Court of Appeals for Hamilton county.

      Messrs. DeCamp '& Sutphin; Mr. Leo J. Brumleve and Mr. Gregor B. Moorman, for plaintiff in error.

      Messrs. Galvin & Galvin; Mr. A. D. Alcorn and Mr. R. S. Alcorn, for defendant in error.
   Hamilton, J.

This action was begun in the (common pleas court of Hamilton, county, Ohio, by the administratrix of William T. Bonte, to recover ¡damages for the wrongful death of said William T. Bonte, alleged to have been caused by the negligence of the defendant below, Albert Krippendorf.

Bonte, on .alighting from a street car on McMillan street between Symmes street and Essex ¡Place in Cincinnati, Ohio, was struck and killed by an automobile belonging to the said defendant Albert Krippendorf, which at the time was being operated by one Burns, who" was the regularly employed chauffeur of the said Krippendorf. The petition sets out at length the acts of negligence complained of: that the driver of the automobile was the servant, agent and employe of the defendant below, placed in charge thereof by said defendant; that said driver, operating said car at the time in question at a reckless and unlawful rate of speed, drove past the street car from which ■decedent was alighting, in violation of the city ordinance, striking and causing the death of said 'Bonte.

The answer admits the appointment of the administratrix; that decedent was struck by an automobile on McMillan street, Cincinnati, Ohio, dying soon thereafter. Then follows a general denial as to the other allegations of the petition. The answer further charges contributory negligence on the part of the decedent.

The cause was tried to a jury, resulting in a verdict for plaintiff for $7,500. The motion for a new trial was overruled, and judgment was rendered for the amount of the verdict. The defendant prosecutes error to this court asking for a reversal of that judgment.

The petition sets forth fifteen grounds upon which reversal is asked. These several grounds are in effect covered by the propositions that the court erred in refusing special charges requested by the defendant below; erred in its general charge; erred in refusing the interrogatories requested by the defendant below; and that the verdict and judgment were against the weight of the evidence. These propositions will be discussed seriatim.

The petition avers that the driver of the automobile at the time of the injury complained of was a servant, employe and agent of the defendant Krippendorf — which was a necessary allegation. This is denied by the defendant. And all the questions involved turn on this proposition.

Upon the authority of White Oak Coal Co. v. Rivoux, 88 Ohio St., at page 24, and Lima Ry. Co. v. Little, 67 Ohio St., 91, the liability of the defendant Krippendorf is based upon the wrongful and negligent act of his servant. The defendant, Krippendorf, however, is not liable unless the acts complained of were committed while said servant was acting within the scope of his employment. It was incumbent upon the plaintiff below to establish by a preponderance of the evidence that defendant’s servant Burns was acting within' the scope of his employment at the time in question.

It may be admitted for the purposes hereof that the death of decedent was caused by the negligent operation of the automobile by Burns, who was the regularly employed chauffeur of the said defendant Krippendorf, and that the automobile was the property of said Krippendorf.

■ While there was other evidence as to the duties and privileges given !by said Krippendorf to the said chauffeur Burns, the controlling evidence as to the capacity in which Burns was acting at the time of the accident complained of is set forth in the following evidence. The defendant, his wife, his brother, and his sister-in-law, were driven by Burns in defendant’s machine to the Church of the Advent to attend a wedding. On this trip Burns informed said Albert Krippendorf that he had tickets to the automobile show at Music Hall that night. On cross-examination of Albert Krippendorf the following questions were asked and answers given:

“Q. Now Burns spoke to you between your brother’s home and the Church of the Advent and told you that he had tickets for the Automobile Show, did he not?
“A. Yes.
“Q. Which was being held down town, at Music Hall in Cincinnati?
“A. Yes.
“Q. That night?
“A. Yes.
“Q. Now what time in the evening was that?
“A. That was about a quarter of six.
“Q. Now at that time you told him that he could go and you wanted him to return to your house by half-past nine and he should take your car to go, didn’t you?
“A. Yes.
“Q. Now what time did you give him those instructions ?
“A. At a quarter of six, going to the Church of the Advent, was the 'first time I gave them to him, and later I told him, when we had gotten to the Rowe residence, I told him that he could — he asked to get off, if he could have the car, and I told him yes, he was off for the evening, I wouldn’t want 'him again.
“Q. But that was later in the evening?
“A. Around seven o’clock.
“Q. But the other instruction was given to him when he spoke of having the tickets?
“A. Yes.
“Q. And you wanted him back at your house so that you could catch him by telephone?
“A. Yes.
“Q. And you told him to take the car to go to the Automobile Show at that time?
“A. I told him he could have the car.
“Q. Well, just in the language I gave you— you instructed him to take your car and be back at nine-thirty?
“A. I didn’t instruct, him; I told him he could take the car.”

The re-direct examination of Albert Krippendorf developed the following:

“Q. Now repeat again just what you told him to do.
“A. When we got in the automobile and left Carl Krippendorf’s house, I told him to go to the Church of the Advent, and he was to wait there, and after we left there we’ were going to the Rowe residence, and then he would go home and be at my house at nine-thirty and I would telephone him, and he said he had tickets for the Automobile 'Show and I said, ‘Well, you had better use the car so you can be back, in time.’
* * *
“Q. What instructions had you given Burns after you left the Church?
“A. I told him we had made arrangements to go home with Carl Krippendorf; they would take us home from the Rowe residence and we wouldn’t need him.
“Q. What instructions did you give him when you reached the Rowe residence and had stepped from the automobile?
“A. As I stepped from the automobile he 'said, ‘Can I have the car to go to the Automobile Show?’ and I said, ‘Yes, you are off for the evening; I won’t need you.’ ”

Mrs. Carl Krippendorf, on direct examination, testified as follows:

“Q. Did you hear any conversation between the chauffeur and Mr. Albert Krippendorf at that time ?
“A. I did.
“Q. Please state what was said either by Mr. Krippendorf or by the chauffeur.
“A. The chauffeur asked if he could have the automobile and Mr. Krippendorf replied that he could have it, and that he was off for the evening, —he wouldn’t be needed.
“Q. What-did the chauffeur then rdo?
“A. He drove away.”

The testimony of Mrs. Albert Krippendorf, Carl Krippendorf, and the chauffeur Burns, while not in the exact language, is to the same effect with reference to the later instructions given, that is, that the chauffeur asked permission to use the automobile to take his mother and party to the automobile show, and consent was given by the defendant Krippendorf with the statement that he was “off for the evening.” The evidence discloses that the said Burns thereupon got his mother, sister and brother-in-law in The automobile, and was proceeding to get his fiancée and party, to go to the automobile ‘show, when the accident occurred.

Upon this ’Statement of facts several special charges were requested by 'the defendant below, which were refused.

Special charge No. 1 requested by defendant, and refused by the court, is as follows:

“The court charges you that if you find' from the evidence that at the time of the injury, the automobile of defendant was used by his regularly employed chauffeur with the permission and consent of the defendant for the chauffeur’s own pleasure and convenience, and not for any purpose, business or pleasure of the defendant, then the defendant is not liable and your verdict must be for the defendant.”

Under the state of facts as disclosed by the evidence above set out, in view of the holdings in the cases of Coal Co. v. Rivoux and Railway Co. v. Little, supra, we think that special charge No. 1 requested by the defendant below properly states the law applicable to the instant case, and that the refusal to give this charge was prejudicial error.

Special charges Nos. 2, 3, 5, 6 and 10 were merely cumulative and for that reason might have been properly refused.

Special charges Nos. 11 and 13 were properly refused, as these charges would in effect charge as a matter of law which facts in the case do, and which do not, constitute negligence, which is a question for the jury.

The general charge of the court below is complained of in that the court charged the jury that permissive use of the automobile made the defendant liable. Running through the charge of the court as to the question of liability of the defendant, we find the court in many instances used the words in a disjunctive sentence, “or by the permission of the defendant, then the defendant would be liable.” This was in effect charging the jury to return a verdict for the plaintiff below; for it was conceded that defendant gave the servant Burns permission to use the automobile for his own pleasure in going to the automobile show and taking the members of his own family with him. To hold that use of an automobile by permission of the owner would make the owner liable would be equivalent' to holding that the owner of an automobile is an insurer against negligence if his automobile is used with his consent. The lower court may not have intended to go this far, and may have expected the jury would take this statement into consideration in connection with other statements and facts in the case, but the disjunctive use of the expression above quoted, repeated over and over again, could have misled the jury; and we are of the opinion that in respect to the use of this expression in the general charge the court committed prejudicial error.

The defendant below submitted , six interrogatories and requested their submission to the jury, which was refused by the court. Section 11463, General Code, provides:

“When either party requests it, the court shall instruct the jurors, if they render a general verdict, 'specially to find upon particular questions of fact, to be stated in writing, and shall direct a written finding thereon. The verdict and finding must be entered on the journal and filed with the clerk.”

We think the intérrogatories were proper and pertinent, going to the question of contributory negligence, and might be determinative of that material fact, and should have been submitted to the jury for answer.

This court is further of the opinion that the verdict and judgment are against the weight of-the evidence. It being incumbent upon the plaintiff below to establish by a preponderance o'f the evidence that the chauffeur Burns was acting within the scope of his employment when the injury complained of occurred, we will consider the evidence upon this point. The uncontroverted testimony of the defendant below is to the effect that he gave Burns, his said chauffeur, two separate instructions; the first,- at the 'church, that he, Burns, might use defendant’s automobile to go to the -automobile show, but that he -should return to his home by 9:30. This instruction was later changed by >a second instruction to the effect that defendant with his wife had arranged to go to their home from the wedding supper in the Carl Krippendorf car and would therefore not need defendant’s car, and that he, Burns, could use defendant’s car to take his mother and party to the automobile show and need not return that night, as he was off for the night. Defendant below was supported in this testimony by his wife, his brother, his sister-in-law, and by the chauffeur Burns, and no testimony is offered by the plaintiff below to controvert this testimony, and no evidence is shown to the contrary, unless it be, as claimed by counsel for plaintiff below, that the testimony should be discredited by reason of relationship and interest of these witnesses, and the ease with which the instructions might be changed to suit this case. It is contended by counsel for plaintiff below that the first instructions given by defendant to the chauffeur would without question make the defendant liable, and that these instructions only should be considered, and that the last instructions, which would admittedly relieve the defendant of liability, should not be given full credence. We see no reason for not taking this testimony at its face value. If there had been any attempt' to mould the testimony to fit the case it would have been much easier to leave' out the first instructions altogether, but the fact of the two separate instructions gives additional strength to defendant’s testimony. The circumstances of the chauffeur desiring to take his mother and relatives to the show, the arrangement of defendant and his wife to go home from the wedding party in 'his brother’s automobile, the using of the car by Burns as requested, all support the statement that Burns was “off for the night.” In accordance with permission .to use the automobile the chauffeur Burns left the defendant for the night, got his relatives in the machine, and started to go for his fiancée, to take them to the automobile show; and while on this trip the accident happened. We can see nothing in this state of facts to fix a liability for the 'act complained of on. the defendant below. We are of the opinion that under the ’evidence plaintiff below has not only failed to establish by a preponderance of the evidence that the chauffeur Burns w.as acting within the scope of his employment at the time in question, but on the other 'hand the decided weight of the. evidence is to the contrary, that he was not so acting at the time of the injury.

It must be conceded that the chauffeur Burns was guilty of negligence in the case. But as the question of his negligence is not necessary in determining the case we have not discussed that branch of it; and, further, it was not necessary to discuss the effect of the violation of the city ordinance, if such occurred.

For the reasons above stated the judgment will be reversed and the cause remanded for a new trial.

Judgment reversed, and cause remanded.

Jones, P, J., and Gorman, J., concur.


author: Richards, ' J.

text:
    Smith v. Lyon.

      Statute of limitations — Alienation of affections — Cause of action accrues, when — Criminal conversation — Action by wife lies, when.

    1. By virtue of the provisions of Section 1-1224, paragraph 4, General Code, the right to bring an action for alienation of affections is limited to four years from the time the cause of action accrued.-
    2. The marital relation is invaded, and a cause of action for alienation of affections accrues, whenever a third person by enticement, seduction or other wrongful and intentional interference with the marriage relation, deprives either the husband or wife of the consortium of the other.
    3. A married woman may maintain an action to recover damages for criminal conversation with her husband.
    (Decided March 18, 1918.)
    Error: Court of Appeals for Lucas county.

      Messrs. Jacobson & Say les, for plaintiff in error.

      Mr. M. O. Rettig, for defendant in error.
   Richards, ' J.

The original action was commenced in -the 'court of -common pleas by Ida B. Lyon -filing a petition to recover damages for the alienation of the affections of her husband. The trial resulted in a verdict and judgment in favor of the plaintiff in the amount of $2,500, and we are asked, because of numerous errors which are claimed to exist, to reverse this judgment.

The case was tried on the third amended petition, the answer thereto and the reply. The original petition was filed on June 27, 1916, and alleged the marriage of the plaintiff to Hervey C. Lyon on April 25, 1886, and averred that the mar-adage relation had continued until June 26, 1916. On that day Mrs. Lyon and her husband were divorced, and on the succeeding day the husband married Sarah E. Smith, and this action was commenced by Ida B. Lyon, the divorced wife. Ida B. Lyon, the plaintiff, and Hervey C. Lyon are, or were at the time of the commencement of this action, the parents of two grown daughters. The petition further averred that early in the year 1905, the defendant commenced to commit adultery with plaintiff’s husband with the wilful and deliberate intention of alienating his affections from his wife. This petition and two successive amended petitions thereafter filed were held bad, presumably because of the statute of limitations, the pleadings containing the averment that the alienating of affections continued from early in the year 1905. The third amended petition, after setting out the marriage, avers that for the last four years prior to the beginning of the action the defendant continuously lived in a state of adultery with plaintiff’s husband, and that by reason thereof she has deprived plaintiff of the society of her husband, and his assistance and comfort, and has wilfully alienated his affections from her.

Although the action was planted and tried as one for the alienation of affections, we are met at the threshold of our investigation of the record with the third amended petition, which appears to set forth a cause of action not simply for the alienation of affections but also for criminal conversation. It is true that at common law the wife could not maintain an action for criminal conversation had with her.husband, and neither could she maintain an action for the alienation of the affections of her husband. Under modern jurisprudence, which takes ¡cognizance of the enlarged rights of a married woman, all but two or three of the states of the Union have recognized the right of a wife to maintain an action for the alienation of the affections of her husband, and among the states recognizing that right is the state of Ohio. Westlake v. Westlake, 34 Ohio St., 621.

Under similar principles of jurisprudence, we see no reason why a married woman should not also have the right to maintain an action for criminal conversation with her husband, independent of any question of alienation of affections. The wife’s right of action is lucidly discussed and maintained in 13 Ruling Case Law, 1488, the author concluding with the following statement:

“Moreover, under modern statutes, the broad rule has been laid down that a married woman may maintain an action for criminal conversation with her husband, it being said that while the injurious consequences'of a wife’s adultery may be more farreaC'hing because of probable difficulties and embarrassments in respect of the legitimacy of children, her conjugal rights are in principle the same, substantially, as his, and that, no matter what the ancient 'doctrine may have been, modern morals and law recognize the equal obligation and right of husband and wife.” Dodge v. Rush, 28 App. Cas. (D. C.), 149, 8 Ann. Cas., 671.

It is true that the first petition in the case at bar was met with a motion to separately state and number the causes of action, which motion was overruled; but the plaintiff filed subsequent pleadings, and no further attempt was made to compel a separation of the causes of action, and the case was tried and the jury charged as if the action were one only for the alienation of affections.

The answer consisted of a general denial and a plea of the statute of limitations, but the charge omits all reference to the statute of limitations, although much of the evidence that was introduced related to transactions occurring many years prior to the commencement of the action, some of them, indeed, extending back as far as the date which had been set out in the original petition filed by plaintiff, to-wit, the year 1905. By virtue of the provisions of Section 11224, General Code, paragraph 4, the right of action for the alienation of affections is limited to a period of four years after the cause of action accrued. An important question of fact therefore arose in the case as to when the cause of action accrued. The action being one for alienation of affections would evidently accrue when the affections were alienated. The right to bring an action would then arise, and when that right arose the statute of limitations. would begin to run. The gist of an' action for alienation of a husband’s affections is the loss of the society, affection and consortium of the husband. Just when the right to sue accrued was, of course, a question of fact to be determined by •the jury. The defendant contended that the right arose in 1905. This question should have been-submitted to the jury under proper instructions as to the law. (1 Encyclopedia of Evidence, 760.) If the right arose in 1905, it was, of course, barred by limitation when the action was commenced in 1916, unless the offense was condoned and the affections reinstated and again alienated within 'the statutory period of four years prior to the commencement of the action. The question is very clearly discussed in Farneman v. Farneman, 46 Ind. App., 453, which case was cited with approval by the supreme court of Indiana, on October 11, 1917, in the case of Fidelity & Casualty Co. of New York v. Jasper Furniture Co., 117 N. E. Rep., 258. See also 25 Cyc., 1148; Bookman v. Ritter, 21 Ind. App., 250; Hogan v. Wolf, 57 Hun, 588, 10 N. Y. Supp., 896, and Macfadzen v. Olivant, 6 East, 387. In this last case, Lord Ellenborough used the following language:

“The cause of action in these cases arises from the time of the injury done by the defendant by the corruption of the body and mind of the wife; for from that time she is less qualified to perform the duties of the marriage state.”

The invasion of the marital relation, which gives rise to a right of action independent of the question of criminal conversation, is clearly stated by Donahue, J., in the course of the opinion in Flandermeyer v. Cooper, 85 Ohio St., 327, 341, in the following language:

“This right is invaded whenever a third person through machination, enticement, seduction, or other wrongful, intentional and malicious interference with the marriage relation deprives the husband or wife of the consortium of the other.”

See also Sanborn v. Gale, 162 Mass., 412, although we think the rule is not very cautiously stated in this last case, as an action for alienation of affections will lie although the wrongful conduct was 'not accompanied by adultery.

While the last amended petition limited the complaint to the period of four years, yet the evidence that was introduced covered, as has been said, a much longer period of time, and the charge permitted the jury to assess damages for alienation of affections, regardless of when it occurred, and scrupulously avoided giving the jury any instructions on the subject of criminal conversation.

The charge of the court contains instructions to the jury on the subject of common-law marriage between the defendant and Hervey C. Lyon. We are unable to see how the existence or nonexistence of a common-law marriage between them could in any wise affect the rights of the plaintiff below.

The judgment will be reversed and the cause remanded for a new trial.

Judgment reversed, and cause remanded.

Chittenden and Kinkade, JJ., concur.'