author: CHITTENDEN, J. Kinkade, J.

text:
    DIVORCE AND ALIMONY.
    [Ottawa (6th) Court of Appeals,
    October 13, 1916.]
    Richards, Chittenden, and Kinkade, JJ.
    Wilfred H. Cunningham v. Anna B. Cunningham.
    Ohio Court* without Power to Grant Divorce to Party to Action for Divorce Granted by Court In Sister State on Actual Service.
    Where a court of a sister state, having jurisdiction of the subject-matter of the action and of the parties by actual service, grants a divorce to one of the parties thereto, the courts of this state are without power thereafter to grant a divorce to one of the parties to the former action.
    [Syllabus by the court.]
    Error.

      King & Ramsey, for plaintiff in error.

      Graves, Stahl <& Duff, for defendant in error.
   CHITTENDEN, J.

The plaintiff, Anna B. Cumiingham, brought an action in the common pleas court of this county against the defendant, Wilfred II. Cunningham, in which she prayed for a divorce from the defendant upon the ground of extreme cruelty. The defendant filed an answer in which he admitted the marriage of the plaintiff and the defendant at the time set forth in the petition, and that one child had been born of the marriage, and denied each and every other allegation in the plaintiff’s petition. contained. For a further defense the defendant alleged that in an action brought in the court of common pleas of Montgomery county, in the Commonwealth of Pennsylvania, by the defendant against the plaintiff, the plaintiff therein, Wilfred H. Cunningham, prayed for a divorce from the said Anna B. Cunningham, and that on November 6, 1915, the court of common pleas of Montgomery county, Pennsylvania, rendered its judgment and decree granting to the plaintiff therein, Wilfred H. Cunningham, a divorce for the aggressions of the respondent therein, Anna B. Cunningham. It was further pleaded that such court of common pleas was a court of general jurisdiction and that the judgment of divorce granted therein was in full effect. No reply was filed to this answer.

Upon the trial of the case in the common pleas court of this county the plaintiff was called as a witness and testified in her own behalf and at the conclusion of her evidence the plaintiff rested. Thereupon the defendant made a motion to dismiss the petition on the ground that the plaintiff had furnished no corroboration of her testimony, such motion being based upon the statutory provision that a divorce shall not be granted upon the uncorroborated testimony of a party to the action. The motion being overruled, the defendant introduced in evidence a complete transcript of the record and papers in the proceedings had in the court of common pleas of Montgomery county, Pennsylvania, in the case referred to in his answer. This transcript of the record of that case was duly authenticated according to law. It was also conceded that there is a statute in the state of Pennsylvania which provides that where a divorce is granted upon the ground of adultery the party so being found guilty of adultery shall not, during the lifetime of the divorced husband or wife, marry the person with whom the adultery was committed. The defendant then renewed his motion to dismiss the petition on several grounds, the principal ones among them being that the evidence showed that the plaintiff had not been a resident of the state of Ohio for a year immediately preceding the commencement of the action, and that her testimony had not been corroborated. Thereupon the court overruled the motion of the defendant and proceeded to grant to the plaintiff a decree of divorce upon the ground of extreme cruelty as charged in her petition. Motion for new trial was filed and overruled by the court, to which action of the court the defendant excepted. The proceeding in this court is for the purpose of reversing the judgment of the common pleas court.

The first question presenting itself is as to whether or not this court has jurisdiction to review the judgment of the common pleas court on error. It is claimed that the decision in Parish v. Parish, 9 Ohio St. 534 [75 Am. Dec. 482], is authority against the jurisdiction of this court to make such a review of this case. The case of Parish v. Parish, determined that a decree of divorce, although obtained by fraud and false testimony, could not be set aside on an original bill filed at a subsequent term. This decision was based upon the proposition that sound public policy requires that a judgment or decree which affects directly the status of married persons by sundering the matrimonial tie and thereby enabling them to contract new matrimonial relations with other and innocent persons should never be reopened. It was said in the course of the opinion that “such a course would endanger the peace and good order of society, and the happiness and well-being of those who, innocently relying upon the stability of a decree of a court of competent jurisdiction, have formed a connection with the person who wrongfully, perhaps, secured its promulgation. ’ ’ At the time of this decision there was a statute which provides that, “No appeal shall be obtained from the decree but the same Shall be final and conclusive.” This statutory provision was said' by the court to be nothing more than a recognition of the principle of public policy just mentioned. That provision of the statutes no longer remains a part of the statutory law of this state, but since its elimination the Supreme Court, in the ease of Mulligan v. Mulligan, 82 Ohio St. 426, affirmed the doctrines announced in the ease of Parish v. Parish, the Supreme Court reversing the decision of the circuit court of the third district Mulligan v. Mulligan, 31 O. C. C. 89 (11 N. S. 585).

It is clear that the Supreme Court has steadily adhered to the general principle announced in Parish v. Parish. An examination of the record in the case at bar discloses facts which present an entirely different problem for solution. In the Parish ease the action was directed to the annulling of a decree that had theretofore been granted divorcing the parties to the action. In the case at bar the evidence shows that by the action of the common pleas court of Montgomery county, Pennsylvania, a court of general jurisdiction which had jurisdiction of the subject-matter and of the parties, a decree had been rendered in favor of the plaintiff in that case and against the defendant. The defendant in that case, plaintiff herein, had filed an answer in which she denied the charges of adultery made against her by the complainant in that action. The exemplified record of the proceedings in that ease shows that upon the evidence adduced at the trial the court found her guilty as charged and a divorce was accordingly granted to the husband. The effect of this decree was to fix positively the legal status of the parties so far as their matrimonial relations are concerned. This status having been fixed by a severing of the matrimonial relation, public policy forbids any court to interfere with the status thus fixed. We think that upon this ground of public policy, as well as upon other grounds, the court of common pleas of Ottawa county was precluded from entering another decree undertaking to fix their legal status so far as their matrimonial relations were concerned.

Another reason most apparent why the court of common pleas of Ottawa county had no jurisdiction to enter a decree in this ease is that the question of their marital status had been fully and completely adjudicated in the courts of Pennsylvania and the matter was res adjudicada. The evidence of the decree was before the court in a proper exemplification of the record of that case, and in no sense disputed, and the court was bound, under the full faith and credit clause of the federal constitution, to recognize such decree and regard it as a final adjudication of all questions that were or might have been litigated in that action. It follows also from what has been said that the parties having been theretofore legally divorced there was no marriage relation existing which the trial court in Ottawa county could by a decree undertake to sever, and its action was a nullity in so far as it attempted to grant an additional divorce. Cooper v. Cooper, 7 Ohio (pt. 2) 239.

Tt .is contended that the decree of divorce granted in Pennsylvania was not absolute and that, therefore, the Ohio courts had jurisdiction to hear and determine the question as to whether or not the plaintiff herein was entitled to an absolute divorce. The Pennsylvania decree is conceded to be absolute except for the following provision in the concluding paragraph thereof: “And the said parties shall be severally at liberty to marry again in like manner as if they had never been married, except as forbidden by the act of assembly of March 13, 1815.” The act referred to in the decree is the one which prohibits marriage in the state of Pennsylvania between the adulterous parties during the lifetime of the injured husband or wife. It is not contended that this restriction upon the right to remarry is in force or operation outside of the state of Pennsylvania, nor is it contended that a marriage in contravention of this act entered into legally outside the state would not thereafter be recognized as a valid marriage if the parties subsequently removed to the state of Pennsylvania. The parties to the action in Pennsylvania having both been in court they were bound by the decree with whatever conditions the court there saw fit to attach, and this condition, to the extent indicated in this opinion, is as valid and binding upon the parties as any other portion of the judgment or decree and should be so recognized by the courts of sister states. It would seem that the adding of this condition to the decree did not change the situation from what it would have been had it not been added. The statutes of Pennsylvania provide that marriage shall not take place under the conditions heretofore mentioned and it is the statute which expresses the public policy of the state in that respect which precludes the marriage. The condition in the decree is only incorporated into it so that it may not be contended that the court was attempting to make its decree of divorce any broader than the statutes allowed.

Tt is entirely evident that the decree entered by the trial court in the case at bar was also erroneous because of the statutory provisions of this state which preclude the entering of such a decree upon the uncorroborated testimony of a party to the action. The only corroboration claimed is the answer of the defendant and the exemplification of the record of the Pennsylvania. suit filed in the case. The plaintiff testified that one act of extreme cruelty on the part of the defendant was his charging her with the commission of adultery in the suit pending in Pennsylvania, which charge she testified was untrue. The record shows that by an answer filed in the suit in Pennsylvania she denied the truth of the same charges. The trouble with her corroboration is that the record proves too much. It does, indeed, prove that the defendant charged her with adultery in the action brought by him in the state of Pennsylvania, but it also proves that the adjudication of the issue made up by that charge and the denial thereof by the defendant therein, plaintiff herein, resulted in a finding that she was guilty as charged. So that the very proof which she claims to be corroborative of her testimony is in fact a refutation of her testimony on that point and leaves her without any corroboration upon any material allegation which she is required to prove in order to entitle her to a divorce under the laws of Ohio.

In view of what has been said it is unnecessary to discuss the evidence relating to the plaintiff having acquired a residence in Ohio. Even assuming that the evidence is sufficient to show that she had established her residence in Ohio, the judgment of the court in entering a decree in this ease was entirely erroneous. The motion of the defendant to dismiss the petition of the plaintiff, made at the close of the plaintiff’s evidence and renewed at the close of all the evidence, should have been granted.

The judgment of the common pleas court will therefore be reversed and this court will proceed to enter the judgment that should have been rendered by the common pleas court, dismissing the petition of the plaintiff at her costs.

Richards, J., concurs.

Kinkade, J.

I concur in the judgment of reversal and the entering of final judgment here.


source: Caselaw Access Project

author: GORMAN, J.

license: Public Domain

text:
    DIVORCE AND ALIMONY.
    [Hamilton (1st) Court of Appeals,
    March 6, 1916.]
    Jones, Jones and Gorman, JJ.
    Annie Fronriter v. John C. Fronriter.
    Property Accumulated by Mutual Efforts and Frugality of Husband, Wife and Children, Equitably Divided on Separation.
    Property accumulated by the industry, frugality and faithful and exemplary assistance of a wife and seven children as well as the husband will be on review by the court of appeals, equitably divided between the husband and wife on separation after forty years of marital life.
    Error.

      Galvin & Bauer, for plaintiff in error.

      Charles W. Baker, for defendant in error.
   GORMAN, J.

On April 9, 1913, Annie Fronriter, the plaintiff in error here, filed a petition in the insolvency court of Hamilton county praying for alimony, against John C. Fronriter, the defendant in error. The case was heard, the defendant being in default for answer, and the court awarded to plaintiff an allowance of $60 per month as alimony, and made the same a lien upon defendant’s real estate. The court further enjoined the defendant, during the life of the plaintiff, from disposing of or encumbering said real estate or any part of it.

Thereafter, on March 18, 1914, the defendant, John C. Fronriter, filed a petition in the insolvency court of Hamilton county praying for a divorce from the plaintiff. Issue was made upon this petition by answer, and by way of cross petition the defendant, Annie Fronriter, asked for an increase in the allowance of alimony theretofore made by the court in the former case. Upon the hearing, the court of insolvency refused the plaintiff a divorce, and continued the matter of the cross petition for an increased allowance to the defendant. Instead of increasing the defendant’s allowance, the court after holding the case for a short time reduced the allowance to $50 per month.

The wife now prosecutes error to reverse that judgment.

The record discloses that at the time the parties were married, thirty-nine or forty years ago, neither of them possessed any property real or personal; that during the years of their -married life the- wife was a most faithful and exemplary helpmate. She is the mother of seven children, all ■ of whom are a credit to her and to her husband. She did all her own housework, washing, ironing, mending, taking care of the children and making their clothing. And when the children were able to earn money they went out into the- world and brought home their earnings and paid to the mother and father more than sufficient for their maintenance, practically supporting the household and enabling the husband to save very much more than he would have otherwise been enabled to do. At the time of the hearing it appears that there are two pieces of property -in the name of the husband, valued at about $19,000 or $20,000 in Avondale. This property is the result of the joint savings of the husband and wife with the assistance which they .received from their children.

We can not conceive of a wife who has been more faithful, earnest and zealous for the up-bringing of the family, their education, maintenance and support, and in the desire to accumulate something for her husband and herself and their family. We are of the opinion that the amount allowed by the trial court in the way of alimony for this woman is entirely inadequate. The record discloses that the income from the property is $175 or $380 per month; and in view of the fact that this property represents the joint savings and earnings of the husband and wife and the family we are of the opinion that this property should be equitably divided between the husband and wife.

The question of an equitable division of this property was not argued to us as fully as it should have been when the case 'was submitted. We have therefore concluded that we will give counsel an opportunity to present further argument as to what would be an equitable division of this property between the parties to this proceeding, if so desired, otherwise the court will make such a division of this property as would be just and equitable, taking into consideration the facts and circumstances.

The power to make this division and modify the judgment of the court below will be found in Sec. 11998 G-. C.; and under Sec. 11364 G. C., this court is authorized to modify the judgment of the trial court in order to do more complete justice to the party complaining.

We have come to this conclusion because it appears to us that there is no immediate prospect of a reconciliation between the parties, and a division of this property would conduce to the happiness and contentment of both parties. If counsel do not, within ten days, desire to further present arguments upon the equitable division of the property, the court will proceed to make such a modification of the judgment as will do more complete justice to the party complaining.

Jones, E. H., and Jones, O. B., JJ., concur.


author: CHITTENDEN, J.

text:
    EVIDENCE — WILLS.
    [Lucas (6th) Court of Appeals,
    June 19, 1916.]
    Richards, Chittenden and Kinkade, JJ.
    Anna Strick, et al v. John Kiss.
    Preponderance of Evidence against Validity of Will Necessary to Overcome Proof and Presumption of Validity.
    In an action to contest the validity of a will it is necessary for the trial judge to charge the jury, by some appropriate language, that the evidence offered against the validity of the will must be sufficient to preponderate over the evidence offered in its support, supplemented by the presumption raised by the statute by virtue of the probate of the will, before the jury will be justified in returning a verdict against the validity of the will.
    [Syllabus by the court.]
    ERROR.

      Cornell Schreiber, for plaintiffs in error.

      Sala <& Carabin, for defendant in error.
   CHITTENDEN, J.

This action was brought to contest the validity of the will of Joseph Vavrek, deceased. The jury returned a verdict finding that the paper purporting to be the last will of Joseph Vavrek was not his last will and testament, and judgment was entered in accordance with such verdict.

It is claimed that the judgment is erroneous because it is manifestly against the weight of the evidence, and because of error in the admission of evidence and error in the charge of the court.

The court properly instructed the jury that proof of the probate of the will made a prima facie case in favor of the defendants of the due attestation, execution and validity of the will, and that the jury would be required to find in favor of its validity unless such evidence was rebutted by other evidence in the case and by a preponderance thereof. The court then proceeded to charge the jury as to what was necessary to constitute a valid will, and then charged as follows: ‘ ‘ The burden is upon the contestant to show by a preponderance of the evidence that this writing, already admitted to probate, was not so executed. If you find the preponderance of the evidence with the contestant on this disputed fact, you will not proceed further but return a verdict finding the writing not to be the last will of Joseph Vavrek. But if you find that they have failed to prove this, then you must consider the further evidence. ’ ’ In the succeeding paragraph of the charge the jury were told, in effect, that a valid will could only be made by a person of sound mind and not under restraint, and that in the case at bar the validity of the will, as regards those qualifications, is evidenced by the will, the proceedings in the probate court and the order admitting the will to probate in that court, but that there was also evidence before the jury which they might consider as tending to rebut and overcome the prima facie case. The latter paragraph did not discuss preponderance of evidence but only stated that there was some evidence tending to rebut the prima facie case in favor of the validity of the will. Later in the charge the court said: “Your verdict will be determined by your conclusion whether a preponderance of evidence exists in favor of the contestants. Preponderance of evidence means evidence which you find worthy of some credibility and of greater persuasive power than the evidence to the contrary. Preponderance exists if you are persuaded more by the evidence upon one side than upon the other side. It exists also when you find evidence worthy of some consideration and no evidence to the contrary.” Again, the court said: “You are to find each fact according to the weight of the evidence relevant to such fact.” And again: “Compare the testimony of each witness. Remember the circumstances and surroundings of the witness and parties and thus fairly find where the preponderance of evidence lies. You are not compelled to avouch the truth of the facts you find, but you are obliged to ascertain whether or not there exists in this action a preponderance of the evidence in favor of the facts claimed by the contestant, the plaintiff here. If you find no preponderance you can not find in favor of the plaintiff. If the evidence upon the issue on the trial before you balances equally upon the one side or the other the plaintiff fails. The defendants do not sustain the burden to prove the will by a preponderance of the evidence. If, however, by a preponderance of the evidence you find that Joseph Yavrek was not of sound mind and memory the plaintiff is entitled to a verdict and finding that the will probated was not the last will of the decedent. And if the preponderance of the evidence shows that the will of Joseph Vavrek was executed by the decedent while under restraint then your verdict should find this will not to be his will.” The last quotation is from the concluding paragraph of the court’s charge.

It will thus be seen that the charge emphasized the instruction that the verdict was to be governed by the jury’s finding upon the preponderance of the evidence, and the preponderance defined in the charge was in accordance with the charge in the trial of ordinary civil actions.

It has been held by the court of appeals of this district in a number of decisions that this is not a correct statement of the law in this respect in the trial of a will contest ease. The correct instruction was announced in Carr v. Carr, decided June 30, 1913, as follows:

“It devolved upon the plaintiff to overcome not only the evidence introduced in support of the validity of the will upon the trial, but also the presumption of the validity of the will arising from its being admitted to probate. ’ ’

This rule was also announced in Garrett v. Perrigo, decided January 5, 1914.

This court also applied the rule in a ease heard in Cuyahoga county entitled Blake v. Smith, decided January 11, 1915, in which case one of the principal errors alleged was a failure to instruct the jury as to the proper effect to be given to the order of probate. In that case we heard additional arguments upon the question, both orally and by brief, and re-examined the question, as a result of which we stated that:

“We adhere to the position that it is necessary for the trial judge in a will contest case to state to the jury that the evidence offered against the validity of the will must be sufficient to preponderate against the evidence offered in its support, supplemented by the presumption raised by the statute by virtue of the probate of the will, before the jury will be justified in returning a verdict against the validity of the will.”

This was the principal error inducing a reversal of the judgment entered in the common pleas court of Cuyahoga county in that case.

The rule announced by this court as above indicated is in accordance with, and made mandatory by, the decision of the Supreme Court in Hall v. Hall, 78 Ohio St. 415, 416. The journal entry in that case recites:

“That the jury was not instructed, as it should have been instructed, that before they would be entitled to return a verdict setting aside the will they must be able to find that the evidence adduced by the contestant, Charles F. G. Hall, outweighs both the evidence adduced by the defendant, Anne S. Hall, and the presumption arising frotn the order of the probate court admitting the will to probate as the valid last will and testament of Mercy A. Hall.”

For the error of the court in its charge as above indicated the judgment will be reversed.

We find no other prejudicial error in the record justifying a reversal, but inasmuch as the cause is to be remanded for a new trial we call attention to certain evidence that was admitted. Certain nonexpert witnesses were asked as to their opinion of the mental capacity of the testator at a time when the testator does not appear to have been tinder their observation. In the case of Carr v. Carr, supra, we called attention to the correct rule as to this class of evidence. The question should call for the present opinion of the witness as to the mental condition of the testator at the time when such person was under his observation. The evidence of such nonexpert witnesses is to be limited to the time when they were present and observing the person about whom they are testifying. Runyan v. Price, 15 Ohio St. 1 [86 Am. Dec. 459].

It is claimed on behalf of the defendant in error that the judgment should be affirmed under the doctrine announced in the second syllabus in McAllister v. Hartzell, 60 Ohio St. 69 [53 N. E. Rep. 715]. We express no opinion as to whether or not the doctrine of that case is applicable in a will contest ease, but even if it were applicable as contended, the state of the evidence as disclosed by the bill of exceptions is not such as to permit this court to dispose of the case under the rule of McAlUster v. Rartzell, supra.

The judgment of the common pleas court will be reversed and the cause remanded for new trial.

Richards and Kinkade, JJ., concur.


text:
    DIVORCE AND ALIMONY.
    [Lucas (6th) Court of Appeals,
    November 27, 1916.]
    Richards, Chittenden and Kinkade, JJ.
    Edna K. Sager v. George Lynn Sager.
    Facts Transpiring after Decree of Divorce and Alimony Requiring Modification of Alimony after Term.
    After a decree of divorce and alimony has been granted a wife, the decree awarding alimony may be modified after the term at which it was granted when the application therefor is based upon new facts thereafter transpiring, of such character as to make the modification necessary to suit such altered conditions.
    Error.

      J. P. Crawford, for plaintiff in error.

      E. H. Horton, for defendant in error.
   CHITTENDEN, J.

The plaintiff in error filed a petition in the common pleas court seeking to have a former decree of alimony in her favor modified. A demurrer to the petition was sustained, and no further pleadings being filed, the petition was dismissed. Error is prosecuted to this action.

The petition sets forth, in substance, that in 1912, the court of common pleas of Lucas county granted her a divorce from the defendant, George Lynn Sager, and at the same time awarded a decree for alimony in her favor in the sum of $500. She alleges that she was at the same time given the care, custody and control of their two children now aged ten and eleven years respectively. That she has had the care and custody of the children since that time and that no part of the decree of alimony has been paid. It is alleged that at the time of the decree the defendant was possessed of no property and that he was at that time earning but $50 a month. That since the date of the decree the defendant has become an experienced electrical worker and that he now earns $85 per month, and that in November, 1914, he was bequeathed personal property of the value of about $15,000 and was devised real estate of the value of $10,000. She therefore asks that in view of the changed condition of the parties the former order and decree of alimony be modified so as to meet and conform to such changed conditions and circumstances.

The nature of alimony is set forth by the Supreme Court in Fickel v. Granger, 83 Ohio St. 101, 106 [93 N. E. Rep. 527; 32 L. R. A. (N. S.) 270; 21 Ann. Cas. 1347], It is there said that:

“Alimony is an allowance for support, which is made upon considerations of equity and public policy. * * * It is based upon the obligation growing out of the marriage relation, that the husband must support his wife, an obligation which continues even after a legal separation without her fault. ’ ’

The petition sets forth that neither the plaintiff nor the defendant has been married since the granting of the divorce, and that the decree for alimony remains in effect and unpaid. If it be true, as stated by the Supreme Court in the above quotation, that the duty to support, in case of divorce because of the aggressions of the husband, continues after the granting of the divorce, then there is every reason why subsequent changes of condition should be considered by the court when its jurisdiction is sought for the purpose of having a former decree modified. "We think that the question involved in this demurrer is determined by cases adjudicated in this state.

In Olney v. Watts, 43 Ohio St. 499 [3 N. E. Rep. 354], it was expressly held that a former decree of alimony may be modified in an original suit brought for that purpose, upon proper allegations of changed condition and circumstances of the parties. It was there determined that such action to modify a former decree must in no wise be based upon facts or circumstances which existed and were or might have been pleaded in the former action, but must be confined to new facts thereafter transpiring, of such character as to make the modification necessary to suit such altered conditions of the parties. In that case the award of alimony was made payable in installments but the exact amount was determined and the exact dates upon which the payments should be made were fixed by the decree. It -was not a decree where installments were ordered paid until the further order of the court. So that, we are unable to distinguish any difference in principle between the case under consideration in which alimony was granted in one given sum, and the decree in Olney v. Watts, supra, in which the total amount was adjudged and was made payable in separate installments. The court say in the course of the opinion:

“The real contention touches the right and duty of the court in a ease like this to review, modify or vacate a former decree granting alimony payable in installments by an original suit or proceeding instituted for that purpose, when such power had not been reserved by the language and form of the former decree.”

After a learned discussion of the subject the court held, as above indicated, that the court had the power to so review and modify a former decree.

The power of the court to review and modify a former decree of alimony was also sustained by the court of appeals in Hamilton county in Baker v. Baker, 35 O. C. C. 243 (21 N. S. 590; 4 App. 170). The circuit court of this county seems to have reached the same conclusion in the case of Meissner v. Meissner, 5 Circ. Dec. 305 (11 R. 1).

Upon the strength of the decisions above cited, we hold that the common pleas court erred in sustaining the demurrer to the petition. The judgment will, therefore, be reversed and the cause remanded with instructions to overrule the demurrer and for further proceedings.

It was stated in argument by counsel for defendant in error, and not denied by counsel for plaintiff in error, that the judgment for alimony had been sold by the plaintiff and that she no longer had any interest in the same. This fact does not appear from the allegations of the petition, but if such should be the fact it would present a very different question to be determined by the court, and this decision upon the demurrer in no wise indicates what the decision of the court would be i'f it were alleged in the petition, or if it were alleged in the answer and proven, that the plaintiff was no longer the owner of this judgment.

Richards and Kinkade, JJ., concur.


text:
    TENANTS IN COMMON — WILLS.
    [Sandusky (6th) Court of Appeals,
    October 6, 1916.]
    Richards, Chittenden and Kinkade, JJ.
    Joshua Ballard et al. v. Ida Ballard et al.
    Tenants in Common of Real Estate may by Single Will Dispose of Real Estate and Personal Property without Designating Proportion of Legacy Paid by Each Testator.
    Tenants in common of real estate may dispose of the same by uniting in a single will, not in the nature of a compact, and may by the same instrument dispose of their personal property, there being no provision for a legacy that would have to be paid from a fund to be derived from the property of both without designating the proportion in which such legacy should be paid from the property of each testator, and when the intention of the testators can he carried into effect without practical difficulty and without confusion of the properties of each testator.
    Error.

      J. D. Finch and Homer Metzgar, for plaintiffs in error.

      Lester Wilson and Garver & Garver, for defendants in error.
   CHITTENDEN, J.

This action was begun by the plaintiffs in error in the court of common pleas to contest the validity of the last will and testament of Jerome Ballard. At the conclusion of all the evidence both the plaintiffs and the defendants made a motion to direct a verdict in their favor respectively. Upon consideration of this motion the trial court directed the jury to return a verdict finding the paper writing to be the valid last will and testament of Jerome Ballard. The will is as follows;

“WILL

Last Will and Testament.

In the name of the Beloved Father of all: ■ Amen.

I, Jerome & Loretta, County of Sandusky, and State of Ohio, being about 64 & 65 years of age, and being of sound and disposing mind and memory, do make, publish and declare this my last will and testament, hereby revoking and making null and void all other last wills and testaments by me made heretofore.

First. My will is, that all my just debts and funeral expenses shall be paid out of my estate, as soon after my decease as shall be found convenient.

Second. I give, devise and bequeath to

I, Jerome & Loretta Ballard, have both agreed that the one that lives the longest shall have the entire property, both farm & personal property & everything on the farm, and about the house to keep or dispose of in any way. He or she shall see fit during their lifetime, then at our decease everything in the house shall go to Ida Ballard all furniture, silver ware, beds, bedding, books, pictures & in fact everything in the house is hers, Ida shall have Jennie Ballards wearing apparel, jewelry & other things give something to each of her 3 sisters, Nettie, Cora and Mirtie Ballard, there will be sufficient means & Ida shall settle all expenses, all chattels or other loose property can be sold for that purpose, the silver watch shall be brother Joshua Ballards, the gold one shall go to Win Ballard, the 18 acres of land more or less on west side of road unless sold previous, shall go to Charles Calkins of Albert Lea, Minnesota and to his heirs after him, the 60 acres situated in York township shall be Ida Ballards wholly provided it is in our possession at the time of our death.

In testimony whereof, we have set our hand to this our last will and testament at York, this 1st day of March, in the year of our Lord One thousand eight hundred and ninety-nine.

his

Jerome X Ballard Loretta Ballard mark

The foregoing instrument was signed by the said Jerome and Loretta Ballard in our presence and by-published and declared as and for our last will and testament and at their request, and in our presence, and in the presence of each other, we hereunto subscribe our names as attesting witnesses at York, this 1st day of March, A. D. 1899.

B. F. Rogers

resides at Clyde, Ohio.

Charles Everet

resides at York Township, O.”

Counsel for plaintiffs in error contend that this paper writing can not be construed to be a valid last will and testament under the decision announced by the Supreme Court of this state in the case of Walker v. Walker, 14 Ohio St. 157 [82 Am. Dec. 474]. It is claimed that the will is joint both in form and substance and is the result of a compact between the signers thereof, and that such a will is unknown to the testamentary law of this state as declared in the case cited.

The defendants in error argue that the ease of Walker v. Walker, supra, has no application to this case and is not an authority against the validity of the will here in question. They assert that the limitation placed upon the case of Walker v. Walker by the ease of Betts v. Harper, 39 Ohio St. 639 [48 Am. Rep. 477], is such as to completely eliminate the case of Walker v. Walker as an authority to be considered in this case. The Supreme Court was not unanimous in the decision reached in the case of Walker v. Walker and the opinion in that case shows that the court undertook to limit the decision within very narrow boundaries. "While the court in the later ease of Betts v. Harper did not undertake to overrule the earlier decision, they called attention to the limitations placed by the court itself upon the questions decided and declined to extend the scope of the case in any way.

It is urged upon this court that if it should find that the decision in Walker v. Walker does not announce a correct conclusion and is found to be in conflict with the later decisions of courts of last resort upon this subject, it should not feel bound by that decision. Although this court has final jurisdiction in a large class of cases it has- at all times declined to overrule decisions of the Supreme' Court of this state, but, on the contrary, has felt bound to follow such decisions so far as they govern eases under consideration. Any case that would call for the overruling of a decision of the Supreme Court would undoubtedly be of such interest as to cause the Supreme Court to take jurisdiction thereof in which tribunal former decisions of that court might properly be overruled.

The ease at bar is one of unusual interest and has been skillfully argued by counsel for plaintiffs and defendants, both orally and in briefs. The questions presented which at first appeared to be complex become quite clear upon a careful examination of the will itself. It is conceded that the will was properly executed before witnesses and that the parties at the time were competent to execute a will and were not under any restraint or undue influence. The evidence introduced on the trial was principally directed toward showing that Loretta Ballard at the time of the making of the will was possessed of property. It appears that at the time of their marriage some time before the year 1860, each had by inheritance property of approximately the value of $2,000. That thereafter real estate was purchased the title to which was taken in the name of Jerome Ballard. It does not appear just how the property was paid for, nor do we think this is important in the view we take of the case. Thereafter real estate was sold and purchased the title being taken in the name of Jerome Ballard. Later through the interposition of a third party this real estate, or at least a considerable portion thereof, was transferred to Loretta Ballard, and about a year before the making of the will Loretta Ballard deeded the property to her husband, Jerome Ballard, and at the time of her death there was no real estate the title to which was in her name.

There was some evidence tending to show that at the time of her death she owned a few pieces of household furniture and perhaps some small amount of money. It is claimed that it is shown from the evidence that Mrs. Ballard had some beneficial interest in this real estate that might have been asserted by her. Such interest, however, could not have been greater than a tenancy in common and it was decided by the Supreme Court in Betts v. Harper, supra, that tenants in common of real estate might, by a will, executed jointly, devise such property. It was further held in that ease that if in addition to the ownership in common of real estate each was possessed of personal property it might all be devised by a single instrument where the bequests are severable and the instrument is not in the nature of a compact but is in effect the will of each, and that such will might be offered for probate after the death of all those executing it, as the will of each and all such persons.

This will first undertakes to give to the survivor of the testators all the property, to be used as the survivor shall see fit during his or her lifetime. This provision of the will is expressly excluded from the decision in Walicer v. Walker by the language of the opinion in that case, and the validity of such a will is sustained by substantially all the authorities. It then provides that upon the death of the survivor everything in the house shall go to Ida Ballard and specifies many items general in character, concluding with the words, ‘ ‘ In fact everything in the house is hers,” meaning evidently that everything then became hers by virtue of the will. This legacy is a valid provision under the doctrine announced in Betts v. Harper. It is then provided that Ida shall have all the wearing apparel, jewelry and other things of Jennie Ballard who was the deceased daughter of the testators. .This provision is clearly identical in character with the general provision that Ida shall have everything in the house. Attached to this last provision is a direction that she shall give something to each of her three sisters. This provision is quite indefinite. It is not clear whether it was intended that they should each have something that had belonged to Jennie Ballard, probably as a keepsake, or whether this provision is to be satisfied by the giving to her sisters of anything that comes to her by virtue of the will. In any event there is nothing in this condition which in any way affects the validity of the instrument. Then follows a recital that there is sufficient means to settle the expenses of the estate and the obligation is devolved upon Ida to settle all these expenses. The will provides that in so doing she may sell all or any of the personal property for that purpose. It is true that the will does not specify whether the chattels that may be sold shall be those belonging to Loretta or Jerome, but inasmuch as all the personal property not specifically bequeathed goes to Ida Ballard it is quite immaterial to which one of the testators the property so sold belonged. A gold watch is specifically devised to one brother and a silver watch to another. Then follows a devise of eighteen acres of land to Charles Calkins and sixty acres of land to Ida Ballard. It would seem to be quite immaterial in the light of the decisions above mentioned, whether this real estate was owned by Jerome Ballard individually or whether he and his wife were tenants in common. If they were tenants in common they could legally devise it by a single instrument, and if it was the sole property of Jerome Ballard there would be no interest of the wife that could be affected by it.

It is most earnestly argued by counsel for plaintiffs in error that this will bears evidence of being the result of an agreement and that the instrument thus being in the nature of a compact it is void as a will. One of the characteristics of a will is its revocability and it has been held that anything which destroys this feature of revocability destroys the instrument as a will. We are unable to find in this instrument anything which makes it invalid on this account. The instrument sets forth in terms that the parties have agreed that the property shall be disposed of as afterwards set out in the instrument. The express words give it no greater force or effect than it would have without those words. The instrument itself must be looked to to see whether it does in fact contain such an agreement as would prevent the revocation of the instrument by either. We find no more evidence of an agreement in this instrument than was apparent in the will under consideration in Betts v. Harper. It may as well be said that the two sisters Harper had agreed that their property should be disposed of in accordance with the terms of their will. The court evidently did not take that view. It was apparent that the parties to the instrument were in accord upon the disposition of the property of each as well as the disposition of the property owned in common. And so in this ease it is apparent that Mr. and Mrs. Ballard had no difference of opinion as to how the property in question should be devised. Nowhere in the will is there any .provision for a legacy that would have to be paid out Of a fund to be derived from the property of both without designating the proportion in which such legacy should be paid from the property of each of the testators. This will, while most crudely drawn, very clearly expresses the intention of the testators and that intention can be carried into effect without any confusion of the properties of each if they both owned property, and there is no practical difficulty in giving effect to their intention. One of the important incidents to the ownership of property is the right to devise the same by will and wherever possible courts should maintain this right.

We think that an analysis of this paper writing discloses a will that is not within the ease precisely decided in Walker v. .Wai/cer. There is nothing about the will which makes it impossible or even difficult to construe or carry out. The conclusion we have reached we believe not to be in conflict with Walker v. Walker and to be entirely in accord with the case of Betts v. Harper and entirely'in accord with the conclusions of modern text-writers upon the subject and the latter decisions in this country and England. We think that every reason obtains why the principle decided in Walker v. Walker should not be extended beyond the exact question there decided upon facts which would not warrant any different,decision than was arrived at in that case.

The judgment of the court of common pleas will be affirmed.

Bicharás and Kinkade, JJ., concur.


author: KINDER, J.

text:
    COURTS — COMPENSATION AND SALARIES.
    [Henry (3rd) Court of Appeals,
    December 1, 1916.]
    Crow, Robinson and Kinder, JJ.
    State ex rel Hess v. George E. Rafferty, Aud. et al.
    Payment of Additional Salary to Common Pleas Judges not in Conflict with Constitution.
    Section 2352 G. C., providing for additional salary to be paid to judges of the court of common pleas is not in conflict with any provision of the constitution of Ohio and is therefore valid.

      Otto W. Hess, for plaintiff.

      R. W. Cahill and John W. Winn, for defendants.
   KINDER, J.

The prosecuting attorney having refused, upon request, to bring proceedings, this action was begun by the relator under favor of Sec. 2922 G. C., to enjoin the defendants from paying to the judge of %e court of common pleas of Henry county, the additional salary provided for. in See. 2252 G. C., alleging that such payment will be a misapplication and misappropriation of the funds of Henry county, because said section is unconstitutional.

The claim is made in behalf of the relator that by the constitution, the state government is divided into three co-ordinate divisions; namely, executive, legislative and judicial, and the office of common pleas judge falling within the latter division, such judge is a state officer and can be paid only out of the state treasury, from funds provided by taxes levied uniformly throughout the state and that the legislature is without power to provide for additional compensation for such judge to be paid by the county from funds derived by taxes levied upon property wholly within such county.

It is also claimed that the section under consideration expressly violates Art. XII, Sec. II and Art. X, Sec. VII of the constitution and Art. II, See. 26 reads:

“The commissioners of counties, the trustees of townships, and similar boards shall have such power of local taxation, for police purposes, as may be prescribed by law. ’'

So much of Art. XII, Sec. II as is pertinent, reads as follows:

“Laws shall be passed, taxing by uniform rule, all moneys, credits, investments in bonds, stocks, joint stock companies, or otherwise; and also of real and personal property according to its true value in money.”

Article II, Sec. 26 reads:

“All laws of a general nature shall have a uniform operation throughout the state. * * *”

The legislative power of the state, except such as is specially reserved to the people to be exercised under the provisions relating to the initiative and referendum, is vested in the legislature by the constitution subject only to the restrictions and inhibitions contained therein; hence, a law enacted by the general assembly will be declared unconstitutional by the courts only when it is in conflict with some express provision of the constitution. Walker v. Cincinnati, 21 Ohio St. 14 [8 Am. Rep. 24]; State v. Smith, 44 Ohio St. 348, 374 [7 N. E. Rep. 447]; Probasco v. Ring, 50 Ohio St. 373, 378 [34 N. E. Rep. 332; 40 Am. St. Rep. 671]; State v. Miller, 87 Ohio St. 12, 28 [99 N. E. Rep. 1078; Ann. Cas. 1913 E: 761].

The cases of State v. Kreighbaum, 6 Circ. Dec. 654 (9 R. 619); State v. Brickman, 3 Circ. Dec. 710 (7 R. 165); Witt v. Madigan, 24 Circ. Dec. 263 (2 N. S. 267), and Wasson v. Wayne Co. (Comrs.) 49 Ohio St. 622 [32 N. E. Rep. 472; 17 L. R. A. 795]; Hubbard v. Fitzsimmons, 57 Ohio 436 [49 N. E. Rep. 477], and the case of Colbert v. Bond, 110 Tenn. 370 [75 S. W. Rep. 1061], have been cited and relied upon by the relator as determinative that the section under discussion is in violation of the provisions of the constitution above set forth.

The Ohio cases do decide that the legislature is without power to authorize or require a county to construct or maintain a purely public agency of the state beneficial to the people of the state at large, and pay for .the same by moneys derived from taxes levied upon the property within such county.

In the Tennessee case two First, that under the provision which required the salaries of

propositions were determined. of the constitution of that stat? judges to be fixed by law, the legislature had no power to delegate the fixing of such salaries to a county court. And, second, that such act was in violation of the provisions of the constitution of Tennessee granting power to the legislature to authorize counties to levy taxes for county purposes.

.The second proposition was decided on the theory that the provision of the constitution under consideration in that case with respect to taxation by counties was a limitation upon the power of the legislature. That ease also decides expressly and by necessary inference, that counties and their organization are purely local and do not form a part of the permanent organization of the government of the state. The. reverse of that proposition was held in Ohio in the ease of State v. Yates, 66 Ohio St. 546 [64 N. E. Rep. 570],

It will also be observed that Art. X, See. YII of our constitution is a grant of power to the county to tax for local purposes, limited as therein provided, and not a limitation upon the legislative power of the state.

The difference with respect to the constitutional provisions, as well as the conflict of decisions between the courts of Ohio and Tennessee, would seem to render the Tennessee case relied upon of little value touching the question under discussion.

The Ohio cases cited above are not conclusive of the whole question here involved, for there yet remains the inquiry whether the legislature may impose upon purely states agencies or officers, duties which in their nature and effect are local, and of benefit, to the counties and require such counties to contribute to expense thereof from funds raised by taxation wholly within such counties ?

In the case of State v. Yates, supra, it was expressly held that county officers are not local officers but are part of the permanent organization of the government of the state, and that the subject of compensation to county officers is not local in its nature, attention being called to the fact that such officers are local only in the sense that the legislature has provided for their election by the people of the respective counties and that their duties are to a large extent circumscribed by the county.

Many if not all, county officers are required by law to perform duties in carrying forward purely state purposes and at the same time perform services which are confined to the county and for the benefit of the county alone and yet it has never been doubted but that the county might be required to levy taxes to provide for the compensation of such officers.

That a purely state agency whose functions or services result in benefit to a county may be maintained or compensated in part by taxes to be levied within a county, was expressly decided in State v. Shumate, 72 Ohio St. 487 [74 N. E. Rep. 588], and by strong inference, if not expressly, in the case of State v. Edmondson, 89 Ohio St. 93 [105 N. E. Rep. 269].

Under the doctrine of the above cases it would seem that it is not the nature of the office which is held but the character of the services performed and the resultant benefit, which are to determine whether the legislature may provide for compensation to be paid by levy of taxes upon the county.

It will be observed that no part of the jurisdiction, power or duties of the court of common pleas or a judge thereof is fixed by the constitution. The entire subject is remitted for determination by the legislature.

A large part of the services performed by a judge of the court of common pleas has to do with litigation affecting the people and public agencies of the county alone, and an examination of the statutes discloses that, in addition to purely judicial functions performed by a common pleas' judge, he is required, among other things, to act as probate judge; that he appoints the trustees of memorial buildings; that ■ he passes upon claims against the county upon appeal from the county commissioners; that he appoints trustees of municipal libraries; licenses county auctioneers and county ferries; upon the location of the county seat, he is required to appoint a director to purchase property for the county; fixes the amount to be allowed for county law libraries; appoints soldiers relief commissions; is required to fix rules and regulations for the government of county jails; appoints members of commissions to pass upon plans and specifications, and so forth, and cost of the courthouse and jail or additions thereto, alterations, repair or improvement thereof; is required to appoint commissions to act with the county eom-missioners passing upon the specifications and coste of childrens’ homes; is required to appoint a jury commission for the county; approve the appointment of deputy clerks and deputy sheriffs. And it will be observed that each and all of these services are for the benefit of the county or the people residing therein only.

Section 2252 G. C. is of general application throughout the state and the rate of compensation to each judge is the same based as it is upon population though the amount of salary paid to the several judges would, of course, differ.

We are of opinion that the cases of State v. Yates, supra, and Sipe v. Mansfield, 86 Ohio St. 80 [99 N. E. Rep. 208], disposes of the claims that the section under discussion is in conflict with either Art. XII, Sec. II or Art. II, Sec. 26 of the constitution.

It follows that the court cannot say that See. 2252 G. C. is clearly in conflict with any express provision of the constitution, and that the judgment of the court of common pleas must be affirmed.

Crow and Robinson, JJ., concur.


author: POLLOCK, J.

text:
    CIVIL RIGHTS — WORDS AND PHRASES.
    [Mahoning (7th) Court of Appeals,
    March 23, 1915.]
    Spence, Pollock and Metcalf, JJ.
    Youngstown Park & Falls St. Ry. v. Eliza A. Tokus.
    1. Public Dancing Pavilion Place of Amusement within Meaning of Civil Rights Statute.
    A public dancing pavilion is a place of public amusement within the meaning of Sec. 12920 G. C.
    2. Proprietor of Public Dancing Pavilion Liable for Violation of Civil Rights Statute.
    A proprietor of a public dancing pavilion, who ejects another therefrom, after he had been admitted thereon, on account of his color or race and for no other reason, is liable to pay a penalty under Sec. 12841 G. C.

      3. Posting Notices of Privacy of Park Surrounding Dancing Pavilion and Reserving Right to Exclude Persons no Defense to Civil Rights Statute.
    The posting of notices in the park, wherein a dancing pavilion is situate, that the park and pavilion are private grounds and that the proprietor reserves the right to exclude any person whom he, for any reason, deems objectionable, will not relieve the proprietor from liability under Sec. 12941 G. C., to one ejected on account of color or race, if every person, desiring to do so, is admitted except on account of color or race.
    ERROR.

      Arrel, Wilson, Harrington & DeFord, for plaintiff in error.

      S. L. Clark, for defendant in error.
   POLLOCK, J.

The defendant, Clarence S. Tokus, by his next friend, brought an action against the plaintiff company in the court of common pleas of this county to recover a penalty, under Sec. 12941 G. C., for being wrongfully ejected from a public dancing pavilion owned by the plaintiff company. The case was tried, resulting in a judgment in favor of Tokus, and this action is prosecuted to reverse that judgment.

It appears that the Youngstown Park & Falls Street Railway Company, on June 25, 1914, was operating a street railway from this city to a park known as Idora Park; that this company was the owner of the park and certain of the amusements in the park, including a dancing pavilion; that on this date Clarence S. Tokus, who is a young colored man, and his sister attended the park in connection with a Sunday School picnic of white people; that he and his sister were members of this Sunday school; that they were admitted with the rest of the Sunday school people into the park, and continued there until some time in the afternoon, when Tokus purchased a ticket for the dancing pavilion, and he and his sister were admitted through the gate onto the floor of the pavilion, and proceeded to participate in the dance then going on; that during the time of the dance one of the officers in charge of the park and pavilion went onto the floor of the pavilion and removed them, or required them to leave the pavilion.

There was no complaint made of the conduct of either this young man or his sister, but they were removed because of their color and race and for no other reason.

The Park & Falls Company had posted notices at the gate of the park and at other places on the park, giving notice that the park grounds and the amusements thereon were private property, and that it reserved the right to eject any person or persons whom it deemed objectionable. The plaintiff company had provided, under its rules, certain times when white people could occupy the pavilion alone, and other times when colored people could occupy it exclusively, each one occupying it at these times to the exclusion of the others.

The action below was maintained under Sec. 12940 and 12941 G. C. The former section reads as follows :

“Whoever, being the proprietor or his employee, keeper or manager of an inn, restaurant, eating house, barber shop, public conveyance by land or water, theater or other place of public accommodation, and amusement, denies to a citizen, except for reasons applicable alike to all citizens and regardless of the accommodations, advantages, facilities, or privileges thereof, or, being a person who aids or incites the denial thereof, shall be fined not less than fifty dollars,” etc.

And the latter section provides that:

“Whoever violates the next preceding section shall also pay not less than fifty dollars nor more than five hundred dollars to the person aggrieved thereby, to be recovered in any court of competent jurisdiction in the county where such offense was committed. ’ ’

It is claimed on the part of the plaintiff company that a public dancing pavilion is not included within the terms of the statute. It will be noticed that after naming inns, restaurants, eating houses, barber shops, conveyances by land or water, theaters, that it then reads “or other place of public accommodation and amusement,” and it is claimed that dancing pavilions are not included within the term, “other places of public accommodation and amusement. ’ ’

It is urged that this is a penal statute and should be strictly ionstrued; that the maxim rptsdem generis shoiild be applied in the construction of this statute; that whei-e certain persons, objects or things are named, and followed by general terms, that the general terms should be construed to apply to objects, persons or things of similar or like kind.

This is a well recognized rule of statutory construction which is intended to aid the court in determining the true meaning of a statute, but it should not be used to limit or abridge the well defined meaning of the legislature gathered from the ordinary meaning of the words used in the statute, keeping in mind the object that the legislature had in its enactment.

In the ease of Woodworth v. State, 26 Ohio St. 196, the Supreme Court of this state construed a similar expression in a statute reading as follows:

‘1 That if any person shall abuse any judge, or justice of the peace, resist or abuse any sheriff, constable or other officer, in the execution of his office, the person so offending, ’ ’ etc.

In the opinion on the following page Mcllvaine, Justice, uses the following language in reference to this rule of construction :

“Now, it must be remarked that the rule of construction referred to above, can be used only as an aid in ascertaining the legislative intent and not for the purpose of confining the operation of a statute within limits narrower than those intended by the lawmaker. It affords a mere suggestion to the judicial mind that, where it clearly appears that the lawmaker was thinking of a particular class of persons or objects, his words of more general description may not have intended to embrace those not within the class. The suggestion is one of common sense. Other rules of construction are, however, equally potent, especially the primary rule, which suggests that the intent of the legislature is to be found in the ordinary meaning of the words of the statute. Another well established principle is, that even the rule requiring the strict construction of a penal statute, as against the prisoner, is not violated by giving every word of the statute its full meaning, unless restrained by the context. ’ ’

We find that this ease has been cited by the courts of many other states and the principle there laid down followed.

The Supreme Court of the state of Missouri, in the case of State v. Williams, 35 Mo. App. 541, refer to this rule as follows:

“The rule for the construction of statutes, that where the particular words of a statute are followed by general, — as if, after the enumeration of classes of persons or things, it is added, ‘and all others,’ the general words will be restricted in meaning to objects of the like kind with those specified, will not be applied where the application of the rule would be in the face of the evident meaning of the legislature, the object of the rule being not to defeat but to carry out the legislative intent; and so, where the expression in a statute is special or particular, but the reason is general, the expression should be deemed general; and an interpretation must never be accepted that will defeat its own purpose, if it will admit of any other reasonable construction.”

We especially call attention to this case on account of the many citations contained in the opinion construing the ruling.

We also cite on this subject Sutherland, Stat. Constr. Sec. 279; Gillock v. People, 171 Ill. 307 [49 N. E. Rep. 712]; McReynolds v. People, 230 Ill. 623 [82 N. E. Rep. 945]; United States Cement Co. v. Cooper, 172 Ind. 599 [88 N. E. Rep. 69].

Turning now to the statute under which this action was brought, and looking at the evident intent of the legislature, from the language of the statute itself, we find that they were evidently intending to give every citizen equal rights in public places to which they were accustomed to go, either for accommodation or amusement. The legislature did not have in mind specially certain places which they name and others of a similar or like kind but the object they had in view was the citizen. They intended that there should be no discrimination on account of color or race to citizens who might apply at public places for either accommodation or amusement.

While the maxim insisted upon is a rule of statutory construction which a court in construing this statute should consider, yet we think that it should not be permitted to override the clear intention of the lawmakers as evidenced from the plain reading of the statute itself, and we think that a public dancing pavilion comes under the provisions of this statute, including other places of accommodation and amusement.

There is another question urged, and that is that the park and dancing pavilion were private property, and that the plaintiff company reserved the right to admit whom they pleased and eject whom they pleased. Notices were posted at the gate and other places in the park giving notice of this claim.

So far as the evidence in this case goes, every one was admitted into the park and permitted to enjoy the accommodation and amusements of the park, and no questions were asked and no one was refused the privileges of the park and amusements who paid the required charges and conducted themselves properly, except on account of color or race. We do not think that the provisions of the statute can be avoided or evaded by notices of this kind, when the public generally are admitted and no limitations are placed thereon except that of color and race, and that the eviction of any one from the park or the amusements on that ground would be a violation of the statute.

The other question urged that they had provided for separate times for white and colored people to occupy the dancing pavilion, which it is claimed were reasonable, we think is not before the court at this time, for the reason that this young man was permitted to purchase a ticket and enter on the floor of the pavilion without any reference to his violation of that rule, and that his ejectment therefrom under those circumstances would be a violation of the statute, whether such arrangements can be made or not, as claimed by the company.

The judgment in this case is affirmed.

Spence and Metcalf, JJ., concur.


author: CARPENTER, J.

text:
    EVIDENCE — RELEASES.
    [Hamilton (1st) Court of Appeals,
    May 28, 1915.]
    Meals, Grant and Carpenter, JJ.
    (Sitting in place of Judges Jones, Jones and Gorman.)
    Edwards Manufacturing Co. v. Henry Perry.
    Clear and Convincing Proof Required to Set Aside Release to Employer for Personal Injuries.
    The presumption of truth that follows a written release with a covenant indemnifying and saving harmless the covenantee
    from other or further claim for damages of any kind and injury resulting from the accident which caused the injury, can he overcome only hy clear and convincing evidence, and an instruction to the jury that such presumption can he overcome hy a preponderance of the evidence is prejudicial error.
    Error.

      Aaron A. Ferris and Thos. E. Morrow, for plaintiff in error.

      TIiqs. L. Michie, for defendant in error.
   CARPENTER, J.

This cause comes into this court on error to the Superior Court of Cincinnati.

The action was brought to recover damages incurred by defendant in error through the alleged negligence of plaintiff in error. In its answer plaintiff in error set up a release executed by the defendant in error, in the presence of two witnesses, releasing and discharging said company from all liability, and also indemnifying and saving harmless said company from any other or further claim for damages of any kind and injury resulting from said accident.

In his reply the defendant in error admitted the execution of said instrument, but alleged that by reason of the fraudulent acts of the plaintiff in error, it was void.

The only ground of error which we consider necessary to be reviewed in this ease arises out of the following portion of the court’s charge:

“The burden of proof is upon plaintiff to show by a preponderance of evidence, that the minds of himself and the defendant, or the defendant’s agent acting in its behalf, did not at the time meet upon the subject, so that they were not to the knowledge of the defendant, considering the same sort of an instrument. In this connection, it is proper to bear in mind that fraud is not presumed in a written instrument such as the one under consideration, as prima facie evidence of the truth of the contents of such instrument, that is, it affords a presumption that the recitals contained therein are true. The burden of proving want of knowledge of its contents and fraud is as indicated, upon the party who alleges the fraud, and he must prove it by such testimony as will suffice to overcome this presumption and establish his contention by a preponderance of the evidence.”

It is claimed by the plaintiff in error that the court erred in charging that a preponderance of the evidence is sufficient to overcome the presumption that the recitals contained in said written release are true, and that the court should have charged (hat such presumption should have been overcome by clear and convincing evidence.

From the record of the case we are informed that the court, in so charging, relied mainly upon the following cases: Jones v. Greaves, 26 Ohio St. 2 [20 Am. Rep. 752]; Landis v. Kelley, 27 Ohio St. 567; Lyon v. Fleahmann, 34 Ohio St. 151, and Strader v. Mullane, 17 Ohio St. 625.

The fraud practiced in the ease of Jones v. Greaves, supra, was that after the making of the original contract, the defendants fraudulently altered the written proposals for bids by inserting therein “in charcoal tin.” The court refused to charge in that ease that the jury must be satisfied beyond a reasonable doubt, but did charge that a preponderance of the evidence would be sufficient to prove the same. The eminent judge who wrote the opinion in this case relied upon the authority of Strader v. Mullane, supra.

In the Strader case the same issue arose from the allegation that the plaintiff had fraudulently given short weight. It was held that the court in that case erred in charging the jury that the fraud charged must he proven beyond a. reasonable doubt.

In the opinion of Judge Mcllvaine in Jones v. Greaves, supra, he takes occasion to remark:

“Of course, we are not now speaking of those enormous crimes, where all personal injury is merged in the public wrong; nor do we intimate that in all civil actions the issues should 1)0 determined by a mere preponderance of the testimony offered on the trial, however slight.”

The case of Landis v. Kelley, supra, arose out of a proceeding to obtain relief against a contract by which plaintiff in error in that ease had been fraudulently induced to part with certain parcels of land. The court in that case held that a preponderance of evidence was sufficient.

It will be observed that the class of facts in all the cases upon which the trial court in the case at bar relied, is not, to say the least, similar to that in the case at bar. Here we have a written instrument agreeing to release plaintiff in error from any and all liability, and further convenanting and agreeing that he — the plaintiff below — will indemnify and save harmless the plaintiff in error from any other or further claim or claims, etc., resulting from said accident, which instrument is signed and sealed by said Henry Perry, the plaintiff below, and attested by two witnesses.

The question arises whether or not the case at bar so differentiates itself substantially from all the cases upon which the court evidently based its charge, as to warrant the trial judge in charging the jury that a preponderance of the evidence was sufficient.

We are not unmindful of the serious duty east upon this court in attempting to declare the law on this subject. It is incumbent upon us to follow the rule as marked out by the Supreme Court of this state.

It must be evident to any lawyer or jurist that the degrees of evidence required to establish facts graduate from the ordinary civil cases, where there is no legal presumption either way, to those where a presumption of ordinary significance begins, and continues along the line of cases of more serious import, until we reach the highest presumption of innocence in the law, namely that of the criminal ease, where the evidence must not only be clear and convincing, but also beyond a reasonable doubt.

Is it not true that a written instrument which imports of itself a deliberation before its execution, would require a more convincing quality of evidence to overcome the presumption, than such class of cases as those arising out of the cases to which reference has been made? The next higher grade of evidence of which the books speak is that of clear and convincing testimony, and inasmuch as a written instrument which appears to be solemnly executed, such as the one in the case before us, carries with it a stronger presumption, is it not reasonable that testimony of a more convincing character should be required to overcome that presumption than in the class of cases heretofore referred to? *

In the case of Potter v. Potter, 27 Ohio St. 83, the court says:

"When the reformation of a written instrument is sought on the ground of mistake, the presumption is so strongly in favor of the instrument that the alleged mistake must be clearly made out by proofs entirely satisfactory, and nothing short of a clear and convincing state of fact, showing the mistake, will warrant the court to interfere with and reform the instrument. This principle rests upon the soundest, reason and upon undisputed authority, and if not adhered to by the courts, or, when plainly disregarded, is not enforced by reviewing courts, the security ■and safety reposed in deliberately written instruments will be frittered away, and they will be left to all the uncertainty incident to the imperfect and ‘slippery’ memory of witnesses.”

In the case of Ford v. Osborne, 45 Ohio St. 1 [12 N. E. Rep. 451; 4 Am. St. Rep. 507], the first clause of the syllabus is as follows:

‘ ‘ 1. Where it is claimed by the wife that a deed, signed by her husband and herself as a conveyance of her lands, had not been acknowledged by her as it purports to have been, the burden is upon her to show the fact by clear and convincing proof; a mere preponderance of the evidence is not sufficient to support a finding contrary to the certificate of acknowledgement.”

The eourt in its opinion says:

“The burthen on the plaintiff required her to meet and overcome the evidence afforded by the certificate of the notary, supported by the attestation of the witnesses, that she appeared before him as an officer and acknowledged the deed. It stands to reason that, in the absence of any thing to impeach the integrity of the officer and the witnesses, no slight importance should be attached to such evidence; because it is the evidence of an act done in pursuance of law, and which can be attested and proved in no other way. In other words, it is the evidence required by law of the execution and acknowledgment of a deed.”

This case is referred to in numerous decisions subsequent; and in the case of Olinger v. McGuffey, 55 Ohio St. 661, the court refers to the case of Ford v. Osborn, supra, as its doctrine for the authority of its opinion, for the court says:

“The eourt is of the opinion that there is error shown by the record for which the judgment should be reversed, in this, to-wit: That the said James "W. Meek in his answer and cross petition avers that the note on which the suit is brought had been paid off and extinguished, and that the indorsement on the note was placed thereon merely as a memorandum at the request of John G. McGuffey, and not to pass the title to the note, which was denied in the reply of the plaintiff. The burthen of this issue was on the said James M. Meek to establish the same, not by a mere preponderance of the evidence, but by clear and convincing proof. From an examination of the evidence there does not appear to be such proof, and the court must have been of the opinion that such proof is not necessary and that a mere preponderance is all that is required. ’ ’

In the ease of Perry v. O’Neil Co. 78 Ohio St. 200 [85 N. E. Rep. 41], while the court does not distinctly decide the question, yet the leading authorities referred to in the opinion, such as Lusted v. Railway, 71 Wis. 391 [36 N. W. Rep. 857]; Hancock v. Blackwell, 139 Mo. 440 [41 S. W. Rep. 205] and Elkins v. Morgan, 190 Pa. St. 430 [42 Atl. Rep. 1108], are pronounced in their view as requiring the presumption to be overcome by clear and convincing proof.

It must be admitted that in the cases relied upon by the court below in overruling the motion for a new trial, not one of them had in consideration a written release of the character of that in the ease at bar, whereas in those decisions in which releases of this nature have been considered by the courts, they have quite generally held the doctrine of clear and convincing testimony to be necessary in order to set them aside.

Therefore, from the reason that the presumption is so strong in favor of the truth in written instruments, and that the weight of authority is that the presumption in written instruments of this class must be overcome by clear and convincing testimony, we are of the opinion that the court erred in charging that such presumption may be overcome by a preponderance of the evidence.

The case is therefore reversed and remanded to the superior court for further consideration.

Meals and Grant, JJ., concur.


author: RICHARDS, J.

text:
    COURTS — CRIMINAL LAW — MANDAMUS.
    Richards, Chittenden and Kinkade, JJ.
    [Lucas (6th) Court of Appeals,
    June 19, 1916.]
    State ex rel. Raymond C. Hilt v. William F. Renz.
    1. Statute Directing Procedure for Obtaining Jury before Magistrates does not Confer Jurisdiction.
    Section 13432 G. C., does not confer Jurisdiction upon justices of the peace, police judges or mayors, hut directs the method of procedure for obtaining a jury in cases in which such magistrates have final jurisdiction.
    2. Mandamus will not Lie to Compel Clerk of Common Pleas to Draw Jury for Trial before J. P. in Prosecution of which Magistrate has not Final Jurisdiction.
    Mandamus will not lie against the clerk of the court of common pleas to compel him to draw from the jury wheel names of persons to serve as jurors in a prosecution before a justice of the peace for the violation of Sec. 12475 G. C.
    Mandamus.
    P. J. Phelm and George S. Moss, for relator.

      J. C. D’Alton, Pros. Átty. and A. J. Seney, for respondent.
   RICHARDS, J.

This is an original action in mandamus commenced in this court, the object of which is to compel the clerk of the court of common pleas of this county to draw from the jury wheel twenty names of persons to serve as jurors in a certain prosecution before a justice of the peace in this county.

The petition discloses that an affidavit has been filed before the relator, as a justice of the peace, charging one E. H. Drink-water with an offense under Sec. 12475 G. C. That section prescribes a fine or imprisonment, or both, for whoever, with intent to defraud, sells, secretes, destroys, or converts to his own use, or otherwise disposes of chattel property which has been given him in trust, or on deposit, or under an agreement to purchase on the installment plan, and prescribes a like penalty against whoever, with intent to defraud, removes the property beyond the county. The petition further avers that the defendant on being arraigned entered a plea of not guilty and demanded a jury, and that the relator fixed the time of trial and certified to the clerk of the court of common pleas the fact of such prosecution pending before him and demanded that the clerk certify a jury in said cause.

The defendant has filed a general demurrer to the petition and the only question to be decided is whether it is the duty of the clerk of courts, under the circumstances shown, to draw names of persons to serve as jurors.

It is insisted on behalf of the relator that this duty is enjoined by virtue of the language of Sec. 13432 G. C. which reads as follows:

“Section 13432. In prosecutions before a justice, police judge or mayor, when imprisonment is a part of the punishment, if a trial by jury is not waived, the magistrate, not less than three days nor more than five days before the time fixed for trial, shall certify to the clerk of the court of common pleas of the county that such prosecution is pending before him. ’ ’

The section above quoted does not bestow, nor does it purport to bestow, any jurisdiction upon justices of the peace, police judges or mayors, but simply provides the method of procedure for obtaining a jury in cases in which such magistrates have final jurisdiction. Unless in the ease under consideration the justice of the peace has final jurisdiction, he has no occasion to require the services of a jury and no authority exists for causing the names of persons to serve as jurors to be drawn from the wheel; and by final jurisdiction I mean, of course, the authority to try the defendant on the charge made against him, and to impose a penalty or acquit him, and not the mere authority to inquire into whether an offense has been committed, and discharge the defendant or bind him over to another court. The final jurisdiction given by statute to justices of the peace in criminal cases is specifically set forth in other sections of the statutes, particularly Sec. 13423, 1153, 4414, 4416, 4417, 12519, 12520 G. C. and many others. Under Sec. 13423 G. C., a large number of offenses are named over which justices of the peace, police judges and mayors are given final jurisdiction, and in numerous other instances throughout, the statutes these magistrates are given jurisdiction over additional offenses, but nowhere is such final jurisdiction given to a justice of the peace to try a defendant and impose a penalty in a ease where the charge is under Sec. .12475 G. C., unless the accused in writing duly waive a jury and submit to be tried bv the magistrate, as provided by Sec. 13511 G. C.

It is perfectly clear, therefore, that Sec. 13432 G. C., can only apply to a ease where the officials therein named are given by appropriate statutory enactment final jurisdiction to try the accused, and that said section can have no application to a prosecution under See. 12475 G. G. Manifestly the purpose of See. 13432 G. 0., was to make operative all the statutory provisions conferring final jurisdiction of offenses upon the officials named in the section, where imprisonment may be a part of the punishment, and the section can only relate to that character of cases. To hold otherwise would be to decide that the codifying commission and the general assembly, in adopting its report and enacting the statute, had indirectly enlarged the jurisdiction of the officials named in this section so as to embrace all prosecutions where imprisonment is a part of the penalty. It is inconceivable that the general assembly had any such intent in view of the fact that the jurisdiction of these officials is carefully stated in detail in various sections of the General Code, and that they have no jurisdiction except such as may be specially conferred by statute.

Courts will not extend the jurisdiction of a justice’s court by construction beyond the plain language of the statute giving such jurisdiction. McCleary v. McLain, 2 Ohio St. 369. In analogy to what was said by the Supreme Court in Hesse, In re, 93 Ohio St. 230, 235, for a writ of habeas corpus, so I say here, if the general assembly had intended to amend the various statutes prescribing the jurisdiction of justices of the peace and to substitute in lieu thereof the general language used in Sec. 13432 G. C., it- would have been easy to have done so in unequivocal language.

It is true that a contrary conclusion was reached in the probate court in Stank county in the ease of State v. Pohlmm, 57 Bull. 411 (13 N. S. 254), but we can not concur in either the conclusion or the reasoning of the court in that ease.

The conclusion which we have reached is in accordance with opinions given county prosecutors by the present attorney general of Ohio and by his predecessor in office.

For the reasons given, we hold that the demurrer to the petition must be sustained and the petition dismissed.

Chittenden and Kinkade, JJ., concur.


text:
    BILLS AND NOTES.
    [Columbiana (7th) Court of Appeals,
    April 8, 1915.]
    Houck, Pollock and Metcalf, JJ.
    (Judge Houck of the 5th district sitting in place of Judge Spence.)
    Isabella H. Sharp, Exrx. v. George H. Sharp.
    1. Want of Consideration interposed as Defense to Action on Promissory Note where Sum Stated is in Part Gift.
    The gift of the sum payable in a promissory note will not support an action on the note between the payee and payor, but the payor can avail himself of the defense of want of consideration.
    2. Partial Want of Consideration of Promissory Note Available as Defense between Original Parties.
    That Sec. 8133 G. C. does not exclude the defense of a partial want of consideration in an action on a promissory note between the original parties thereto.
    3. Part Consideration Consisting of Valuable Consideration and Part Gift.
    That in such an action the payor can plead and prove that the sum mentioned as payable in a promissory note consisted in part of a valuable consideration and in part of a gift.
    4. Valuable Consideration oniy Recoverable.
    That the payee can only recover the amount of the valuable consideration.
    ERROR.

      Merle E. Rudy and Musser, Eimber & Huffman, for plaintiff in error.

      Geo. T. Farrel and G. 8. Speaker, for defendant in error.
   POLLOCK, J.

George H. Sharp, the defendant in error, brought an action in the court of common pleas of this county against Isabella Sharp, as executrix of Robert B. Sharp, plaintiff in error, to recover a judgment on a promissory note dated May 8,1909, due in two j^ears thereafter, payable to the plaintiff below, for $2,000, and signed by Robert Sharp.

To this petition the defendant below’ filed an answer denying the execution and delivery of this note by Robert B. Sharp, and for a further defense she denied that there was any consideration for so much of the amount of said note as exceeds the sum of $250.

The trial resulted in a judgment in favor of the plaintiff below for the full amount of the note, with interest. This action is prosecuted to reverse that judgment for errors that it is claimed occurred upon the trial.

At the trial of the case the objection to Gearge H. Sharp testifying on the statutory ground of the death of Robert B. Sharp was waived by the defendant below, and he was permitted to testify. All the evidence in regard to the consideration of the note is contained in the testimony of George H. Sharp and in statements which other witnesses testify that he made regarding the consideration for the note.

George IT. Sharp testified that the consideration for this note was the sum of $250 which he had, prior to the making of the note, given to Robert B. Sharp for safekeeping, and that the remaining $1,750 of the sum mentioned in said note was for work and labor which he had performed for the testator.

The defendant below produced a number of witnesses who testified that George H. Sharp, the plaintiff, had, after the death of Robert B. Sharp and prior to the bringing of this action, stated to them that the $2,000 mentioned in this note was made up of two considerations — one of $250 for money which he had, prior to the making of the note, given to Robert B. Sharp, and that $1,750 was a gift to him by Robert Sharp.

At the close of the testimony and before arguments, the defendant below, by request in writing to charge before argument, asked the court, in substance, to charge the jury that if they found that the sum payable in said promissory note arose upon two distinct considerations, one of $250 which was money received by the testate from George H. Sharp prior to the making of this note, and the remaining $1,750 was intended as a gift, that the plaintiff can not recover for the latter sum, but can only recover the sum of $250 with interest thereon.

The court refused to charge as requested, and in his general charge said to the jury that in the event the jury found that some good and valuable consideration was given for the promissory note, then the plaintiff could recover the full amount mentioned in this note with its interest.

The refusal to charge as requested, and the charge as given, are urged as errors in this court for which the judgment of the court below should be reversed.

It is well settled that an intended gift of the amount mentioned in a promissory note will not support an action between the original parties to the note, but that the defendant can avail himself of the defense of a want of consideration. It is equally well settled that at common law, where the sum mentioned as payable in a promissory note is composed in part of a valuable consideration and the balance is without consideration, as where it is intended as a gratuity or gift, that no recovery can be had on the note in excess of the valuable consideration; that a partial want of consideration will avoid a note pro tanto. Parish v. Stone, 31 Mass (14 Pick.) 198 [25 Am. Dec. 378]; Littlefield v. Perkins, 100 Me. 96 [60 Atl. Rep. 707]; Daniels, Neg. Instru. Sec. 201.

The Supreme Court of this state has recognized the principle that a partial want or failure of consideration avoids a note pro tanto. Widoe v. Webb, 20 Ohio St. 431, 435 [5 Am. Rep. 664].

But it is claimed that the common law rule as to partial want of consideration has been changed by the Negotiable Instruments act, Sec. 8133 G. C.:

“Absence or failure of consideration is matter of defense as against any person not a holder in due course and partial failure of consideration is a defense pro tanto, whether the failure is an ascertained and liquidated amount or otherwise. ’ ’

This requires a construction of this section, and in doing so it may be well to look to some of the roles governing statutory construction.

It is a well known rule that remedial statutes should be liberally construed. Sutherland, Stat. Constr. Sec. 409, says:

* * * There are also the three points mentioned by this author to be considered in the construction of all remedial statutes — the old law, the mischief and the remedy; that is, how the law stood at the making of the act; the mischief for which that law did not adequately provide, and what remedy the legislature has supplied to cure this mischief. And it is the duty of judges so to construe the act as to suppress the mischief and advance the remedy.”

Again the same author says:

4 ‘ Section 291. In all doubtful matters, and when the statute is in general terms, it is subject to the principles of the common law; it is to receive such a construction as is agreeable to that law in cases of the same nature. A statue in affirmance of a rule of the common law will be construed, as to its consequences, in accordance with such law. So provisions which are intended to remedy defects in the common law must be read and construed in the light of - that law. ’ ’

It is well known that negotiable instruments acts, in substantially the same form, were passed by the lawmaking power of a number of the states for the purpose of making uniform the rules of law governing the rights of the parties making and holding negotiable instruments.

This right under the common law to defend on the ground of a want or partial want of consideration, or a total failure of consideration, was well established in all jurisdictions. But there was a difference in the holdings in regard to a partial failure of the consideration of a promissory note. In some jurisdictions it was held that where the partial failure was a liquidated amount it might be set up as defense. In other jurisdictions it must be by way of recoupment or separate action. But where the amount of the partial failure was unliquidated, the rule was that it could not be set up as a defense, but must be litigated in a separate action, or at least in a cross-action. Joyce, Com. Paper Secs. 198, 201, 202 and 207; Eaton & Gilbert, Com. Paper pp. 271 to 275, inclusive; 3 Ruling Cases p. 945; Holzworth v. Koch, 26 Ohio St. 33.

Applying these rules of construction to the well known intention of the lawmaking power in enacting the Negotiable Instrument act, the only provision of the section of the statute referred to in which the decisions were not uniform, was the partial failure of consideration.

The right to set up a partial failure as a defense was not uniform, even where the amount of the failure was liquidated, and but few authorities hold that it could be set up as a defense where it was unliquidated. Evidently the intention of this section was to make uniform the right to interpose a partial failure as a defense, whether the amount was liquidated or un-liquidated.

We do not think that the courts would be authorized in saying that the intention of the lawmaking power was to change the rule of law as to want of consideration so as to deprive the maker of a note, where the action was between the original parties to the note, from interposing the defense of a partial failure of consideration where the sum named as payable in the note was composed partly of a valuable consideration and the remainder was a gratuity or gift. To do this would be placing a construction on the general words “absence of consideration” contrary to the general rule of the common law, and not in accordance with it.

The statute, so far as it refers to the defense of want of consideration, is in general terms, and should be construed according to the principles of the common law, but it is specific in regard to the defense of partial failure of consideration.

For these reasons we think the court erred in not submitting to the jury the question of whether $1,750, the amount named as payable in this note, was or was not a gift.

But it is further urged by the defendant below that even if the court did err in refusing to permit the question of the partial want of consideration of this note to go to the jury, yet the case should not be reversed because of the answers returned by the jury to the interrogatories submitted to them by the court, in which, they said that $1,750 was for services, and that the amount of these services was $1,750.

An examination of this testimony shows that the consideration of this note on the part of plaintiff below depends wholly upon the testimony of the plaintiff below; his recollection of what occurred at the time of the giving of this note is somewhat indistinct, and the services which he claims to have rendered, and which had not been paid for prior to that time by the testate, were reasonably worth far less than the amount payable in this note which he claims wras given for that service.

If the deceased intended to recognize the value of these services as being worth $1,750, and that amount of the sum payable of this note was intended to be given by him in payment of these services, the value of them can not now be questioned. We refer to the value of the services only for the purpose of showing the doubtful character of the testimony of the plaintiff below in regard to the $1,750 of the amount named in this note.

The defendant below called a number of witnesses who testified to statements made by the plaintiff, in which he said that $1,750 of the sum payable in the note was a gift of the testate to him. We think that from the doubtful character of the testimony that it was an error affecting the substantial rights of the defendant for the court to refuse to submit the question of a partial want of consideration to the jury, and that substantial justice has not been done.

The judgment of the court below is reversed. Exceptions noted.

Houck and Metcalf, JJ., concur.