text:
    PROCEEDINGS TO SET ASIDE A WILL.
    Circuit Court of Cuyahoga County.
    Anna D. Wadsworth v. D. W. Purdy et al.
    Decided, June 30, 1908.

      ‘Wilts — Effect of Order Admitting to Probate — Argument to Jury Based on Such Order Constitutes Misconduct, When — Review of Proceedings not Limited to, Urged on Motion for a New Trial— Testar mentary Capacity — Proper Definition of — Eccentricities and Delusions Affecting Mental Capacity — Charge of Court — Sections 5858 to 5866 and 5926.

    1. An order admitting a will to probate is, by force of Section 5926, Revised Statutes, prima facie evidence only of its validity; from which it follows that in a proceeding to contest a will under Section 5858, Revised Statutes, et seg., a statement by counsel in argument to the jury to the effect that the probate judge, experienced in such matters, had admitted the will to probate on the same evidence heard in the proceeding to contest, and that it would be presumptuous in the jury to hold differently, constitutes misconduct of counsel prejudicial to the rights of contestants, for which a judgment based on a verdict sustaining the will is reversible.
    2. A trial court is presumed to know what errors occur at the trial of a cause and, having certified that a bill of execptions, showing the errors excepted to is true, the fact that the attention of the court was not called thereto by affidavit or otherwise upon a motion for new trial can not preclude a reviewing court from the consideration thereof on error.

      3. Mental capacity to make a will requires a comprehension of the nature of the act testator is performing, an understanding of the extent of property of which he is disposing, a realization of the relation which he holds to those who have claim upon him and ability to make a rational selection among them; “capacity enough to attend to ordinary business, and to know and understand the business he was engaged in,” lacks essential requisites of testamentary capacity to make a will, and to so charge is misleading and prejudicial.
    4. A testator’s eccentricities, peculiarities or delusions must not affect either the natural or selected objects of his bounty or interfere with his testamentary capacity to make a will. Whether or not such conditions of mind affect testamentary capacity is a question for the jury under proper instructions, and to charge that they are of no consequence, if testator has sufficient mental capacity to transact ordinary business and of understanding the nature of the business in hand, is prejudicial.
    H. H. Johnson and E. F. Voris, for plaintiff in error.

      Henry & Crouse and W. H. Boyd, contra.
    Donahue, J.; Taggart, J., concurs; Craine, J., concurs in the reversal (all of the Fifth Circuit, sitting in place of Judges Winch, Henry and Marvin).
   This proceeding in error is brought to reverse the judgment of the common pleas court of this county in an action in said court, wherein Anna D. Wadsworth sought to set aside the will of H. W. Baird, deceased, claiming, first, that said will was not properly executed; second, that the testator had not mental capacity to make a will.

Upon the trial of the cause in common pleas court the jury returned a verdict sustaining the will, and judgment was rendered accordingly. A motion for new trial was filed and the same was overruled. The principal errors now urged upon the attention of this court are: First, ’misconduct of counsel in the argument of the cause; second, error in the charge of the court; third, that the verdict of the jury was not sustained by sufficient evidence.

First, as to misconduct of counsel. It appears that in the argument of this cause one of the counsel for defendants was permitted to, and- did, argue to the jury, in effect, that the same evidence now before the jury was offered to Judge Hadden of the probate court, and that he, with all his experience in such matters, had sustained the will and admitted it to probate, and that it would be presumptuous in the jury to hold different from Judge Hadden. This all appears in the bill of exceptions, but it is also certified that this matter was not called to the attention of the court by means of affidavit or otherwise upon the motion for new trial. We think that is not important. There are a great many other errors complained of in this bill of exceptions that were not brought to the attention of the court upon the motion for new trial by affidavit, deposition or oral testimony. The trial court is presumed to know what occurred at the trial of this cause, as it now appears by the bill of exceptions. In fact he certifies this bill of exceptions to be a true bill, and we think the matter was clearly before him upon the motion for new'trial, as much as was the admission of evidence or errors in the charge of the court, or any other matters or things excepted to--by counsel for plaintiff in error upon the trial of said cause, and it is'now before this court for review. We are unanimously of the opinion that this argument was improper and prejudicial to the rights of the plaintiff in error.

The method provided by statute (Sections 5858-5866, Revised Statutes) for contesting a will is exclusive (Mosier v. Harmon, 29 Ohio St., 220), and the statute providing for the probating of a will does not provide that the contest may be had touching its admission to probate.

Section 5926, Revised Statutes, provides:

"The said court shall cause the witnesses to such will, and such other witnesses as any person interested in having the same admitted to probate, may desire, to come before such court; and said witnesses shall be examined in open court, and their testimony reduced to writing, and filed.”

From this statute it clearly appears that only witnesses to the will and such other witnesses -as may be offered by parties interested in having the will admitted to probate can be heard. Parties interested in not having the will admitted to probate have no right to call witnesses. It is practically to all intents and purposes a proceeding ex parle in. its nature.

In the case of Bolles v. Harris, 34 Ohio St., 38, at page 41, Judge White, speaking for the Supreme Court, says:

" The jurisdiction exercised in all such cases by the court and jury is virtually that of a court of probate, charged with the duty of finally establishing or rejecting the will. The proceeding to admit the will to probate in the first instance, is in its nature ex parte; the proceeding by contest is a suit inter paries.”

Citing in support thereof, Mears v. Mears, 15 Ohio St., 90; Converse v. Starr, 23 Ohio St., 498.

So that what Judge Hadden had done with this will was of no importance, except that by the force of the statute it became prima facie evidence Of the validity of this will, and cast the burden upon the contestors to show its- invalidity. It is true that in this particular case it so happened that the same evidence is used in the common "pleas-court, touching the execution of the will, that was heard by Judge Hadden, and if there would be any excuse in any case for this argument, it would be this case, but we think that because the action is ex parte, and because the judgment of'that court covered all the questions touching the validity of this will, as well as its proper execution, it is unfair to say that the jury should have the right to consider what Judge Hadden had done touching the same. The effect of that judgment was simply to make a prima facie case in favor of the will, but upon this contest, the ease, except for that, is heard ele novo, and the jury ought not to be influenced by the action of Judge Iladden in -the case, especially when his judgment was rendered in' a.n ex parte proceeding, where counsel perhaps were not present, and if present had no absolute right to be heard; and Judge Hadden’s judgment upon this case made in the common pleas court where counsel for all parties had full right to be heard, and were heard, might "have been entirely different. It was- the duty of the common pleas court to interfere when its attention was called to this argument, and to instruct that the judgment of the probate court had no other or further effect than to cast the burden upon contestors. The court, by permitting this argument, in effect, said to the jury:

“You have a right to consider Judge Hadden’s action as authority in this particular case, and if a man. of his experience and learning should hold this will upon this same evidence to have been properly executed and admitted to probate -as a last will and testament, you should consider his action in connection with the evidence offered in determining what you ought to do in this case.”

We therefore think the argument of counsel in this respect was improper and that the court erred to the prejudice of plaintiff in overruling the objections of plaintiff in error’s counsel to the same, and in not then and there correcting in the mind of the jury any false impressions it may have received by reason of such argument.

The next error seriously urged upon this court is, as to the charge of the court, and particularly as to this language:

“If, therefore, you believe from the evidence that when Mr. Baird executed the papers in dispute he had capacity enough to attend to his ordinary business, and to know and understand the business he was engaged in, then he had the right and the capacity to make such a will, and you should find that the papers in dispute are his will.”

We do not think this is the correct definition of testamentary capacity, but whether it is prejudicial or not to plaintiff in error is a much more serious question. A person may lack in capacity for the transaction of ordinary business and lack in contractual capacity, and yet may have testamentary capacity. Mental capacity to make a will is said to exist where a testator has an understanding of the nature of the business in which he is engaged, a recollection of the property he means to dispose of, the persons who have a claim upon his bounty, and the manner in which it is to be distributed.

In 11 Am. & Eng. Enc. Wills, 151, cited by counsel for plaintiff in error, we find this definition:

" In order to make a valid -will, -a testator must have sufficient capacity to comprehend the nature of the act he is performing; he must understand the extent of the property of which he is disposing; he must comprehend the relation which he holds to those who have claim upon him, and be capable of making a rational selection among them.”

We are inclined to the opinion that this is the best definition that can he given of testamentary capacity and includes all the requisite elements thereof, and any charge which fails to give this, in substance, is defective. The court in this case did, on page 390, substantially give this charge, but in other places throughout the charge the jury is told, in effect, that if he knew and understood the business he was engaged in and had capacity enough to attend to ordinary business, then he had sufficient testamentary capacity to make a will, but in this behalf we think the charge as a whole was misleading.

Counsel for plaintiff in error further complain of this language :

“But if you should find from the evidence that during some portions of his life, Mr.-Baird had eccentricities, or-peculiarities, or even -an insane delusion, or partial insanity on the subject of socialism, or any other subject, and should find from the evidence that at the time he made the writing in question he had sufficient mind and memory to understand his ordinary business, and -that he knew and understood the business he was engaged in and intended to make sueh a will, you should then find it to be his will.”

We think this charge is erroneous in that it does not state that before the jury shall find that these delusions would not interfere with his testamentary capacity, that they must also find that the same did not affect either the natural or the selected objects of testator’s bounty.

In the case of New Jerusalem Church v. Crocker, 7 C. C., 327, it is held, in the fifth paragraph of the syllabus, that:

“The existence in the mind of a testatrix of mere delusions which do not affect either the natural or the selected objects of her bounty, is not inconsistent with testamentary capacity. ’ ’

On page 331, Judge Shauck, in the opinion, says:

“The existence of delusions which in no way relate to those who are excluded from or embraced in the provisions of a will, are not at all inconsistent with testamentary capacity.” Citing, in support of this proposition, Rice v. Rice, 53 Mich., 432; Hollinger v. Byrnes, 37 N. J. Eq., 221; Otto v. Doty, 61 Iowa, 23, and Smith, Will of, 52 Wis., 543 (38 Am. Rep., 756).

This question is also discussed at some length, and the same conclusions reached in the case of Edwards v. Davis, 30 Bull., 283; Joslyn v. Sedam, 2 Bull., 147.

If Mr. Bail’d had any delusions, peculiarities, eccentricities, or any foibles of any kind or character carried to an unreasonable extent, it is not important whether it was socialism, politics, religion, philosophy of energy, perpetual motion, or what not, the subject of his delusion is of no importance to court or jury. The only question is, whether or not it ivas carried to such an extent as to amount to insanity, or a delusion that did affect his judgment and interfere with him exercising a rational judgment in the making of his will. And if the jury found that he had such delusions, and that these delusions did affect either the natural or selected objects of his bounty, then the verdict should have been against the will, and not in its favor, for it can not be said that a man has testamentary capacity where insanity or 'delusions control his judgment in the disposition of his estate, and the court, instead of saying that these delusions were of no consequence, provided he had sufficient mental capacity to transact ordinary business and was capable of understanding the nature of the business in hand, should have added, also, the further condition, provided that these delusions did not affect either the natural or selected objects of his bounty, and did not distort his judgment and prevent him making a rational disposition of his property, and the failure of the court so to do was prejudicial error.

Coming now to the consideration of the question, that this verdict is not sustained by sufficient evidence, while this court is loath to disturb a verdict in a will ease, finding either for or against the validity of the will, yet- we are of the opinion that Section 5865, Revised Statutes, requires the same review of the evidence in such cases as in all other cases. Kettemann v. Metzger, 3 C. C.—N. S., 224.

A majority of this court is of the opinion that in view of the improper arguments in the cause and the error of the court in its charge, that the jury was misled thereby .and that the verdict is not sustained by sufficient evidence and is against the manifest weight thereof, and the same ought to be submitted to another jury, under proper instruction, and with proper argument; but in view of the fact that it may be necessary to retry the case, this court refrains from further discussion of the evidence, for the reason that it might in some way prejudice or affect the judgment of another- jury trying this cause; but for error in the charge, for error in failing to correct the argument of counsel, and not explaining to the jury then and there the only effect which could be given to the judgment of the probate court admitting this will to probate, and because the verdict is against the manifest weight of the evidence, the judgment of the common pleas court is reversed and the cause remanded to the common pleas court for new trial.

Exceptions of defendants in error noted.

Craine, J., dissents from the holding that the verdict is against the manifest weight of the evidence, but concurs in the reversal for the other two reasons assigned.


source: Caselaw Access Project

license: Public Domain

text:
    PLACING VENDOR’S STATEMENT ON A SEPARATE SHEET RENDERS CONTRACT OF CONDITIONAL SALE VOID.
    Circuit Court of Hamilton County.
    National Cash Register Co. v. Fred. Closs, Assignee.
    Decided, December 5, 1908.

      Conditional Sales — Vendor Held to Strict Compliance with Statutory Provisions — With Reference to Notice of His Claim — Section
    The rule that statutes which prescribe the manner in which mortgages or contracts of conditional sale shall be executed and filed or recorded must be strictly complied with, renders a contract oí conditional sale filed with the county recorder insufficient, where the statement of the vendor as to the amount due and unpaid does not appear “thereon,” but is embodied in an affidavit on a separate sheet attached to the contract of sale.

      Charles Phares, for plaintiff in error.

      Fred. Closs, contra.
    Smith, J.; Swing, P. J., and Gieeen, J., concur.
   Upon the facts found by the trial court we are of .the opinion that the judgment of the court below should be affirmed. While a copy of the. contract of conditional sale was deposited with the Recorder.of Hamilton County with an affidavit of the agent of the National Cash' Register Co. that it was a • copy, setting •forth' the amount due and unpaid on the same; yet the affidavit was upon a separate paper and attached to the’copy of the contract. '

We do not think this is in compliance with Section 4155-2, Section 1, Revised Statutes, which provides for the deposit of the contract, with a statement “thereon,” tinder oath made by the person so selling, his -agent, or attorney, of the amount of the claim; or the deposit of -a true copy, thereof, evidently meaning a true copy of the contract, with an original affidavit “thereon,” the affidavit being no part of the contract.

This, therefore, would seem to require -the affidavit, to be upon the instrument or contract itself or a .true copy thereof and not attached separately to it.

Statutes which prescribe the manner in which mortgages or contracts of conditional sale shall be executed, filed or recorded should, in general, be strictly complied with, and unless so complied with they impart no notice; thus the courts have held parties to a very strict compliance with the statute where the rights of third parties intervene. Cross, Trustee, v. Carstens, 49 O. S., 548; Jones, Chattel Mortgages, Section 248.

The judgment of the trial court is affirmed.


text:
    COLLISION BETWEEN TROLLEY CAR AND BUGGY,
    Circuit Court of Hamilton County.
    The Cincinnati Interurban Company v. Samuel E. Haines, Administrator.

    Decided, March, 1909.

      Negligence — Resulting in Buggy Being Run Down by Electric Car — ■ Charge of Court — Pleading—Burden of Proof — Last Chance — Inpeaching a Former Witness.

    1. Instructions to the jury which were approved either expressly or by implication at a former hearing of the same case on review, will not be held erroneous at ,a second hearing of the same case unless error clearly appears.
    2. A special instruction to the jury is erroneous which does not state the manner in which the negligence of the defendant caused the accident, and includes any negligence not charged in the petition.
    3. Negligence can not be predicated against a traction company,, because the motorman of the car which was in collision with a buggy did not stop his car or reduce its speed when he saw the buggy on the track, regardless of the intervening distance and the opportunity which the driver had to get the vehicle off the track before the car reached him.
    4. A question which leads a witness to answer by using the same words which a former witness has .denied using is incompetent, and permitting such a question to be answered constitutes reversible error.

      Kinhead, Rogers & Ellis, for plaintiff in error.

      Peck, Shaffer & Peck and S. B. Hammel, contra.
    Giffen, P. J.; Swing, J., and Smith, J., concur.

       For a former review of the same case, see Cincinnati Interurban Co. v. Haines, 8 C. C.—N. S., 77.

   The negligence averred in the petition is the moving of the ear at a great and negligent rate of speed without keeping any proper lookout for persons or vehicles upon the street. .The amended answer contains substantially a general denial and an averment that the injury and death of Jennie L. Haines were directly caused by the negligence and carelessness of Samuel E. Haines, which averment is denied in the reply. Verdict and judgment for plaintiff.

Special instructions numbered 2, 3, 4, 5 and 6, given at the request, of plaintiff, are identical with those approved either expressly or impliedly by this court upon the former hearing of the cause, and unless clearly erroneous will not now be so held. While the definition of ordinary care and the right of the driver of a buggy upon a public street may not be in the most, approved form, there was nothing in them calculated to mislead the jury to the prejudice of the defendant.

Special instruction No. 7 is as follows:

“This action is prosecuted by the plaintiff for the benefit of the next of kin of Jennie L. Haines, deceased, consisting of her husband and daughter. It is in evidence and not disputed that the husband drove the buggy in which deceased was riding at the time it was struck by the car; and it is claimed by the defendant that he was guilty of negligence which resulted in the collision between the car and the buggy. If you find that the collision was caused by the negligence of .both the motorman and said husband, the, plaintiff is nevertheless entitled to ■ recover such damages as were sustained by the daughter, although in that event he would not be entitled to recover damages for his own benefit. ’ ’

The objection to this instruction is that it does not state the manner in which the negligence of the defendant caused the collision, and includes not only a remote cause, but any negligence not charged in the petition. There was error therefore in giving it to the jury at the request of plaintiff before argument.

The alleged error in not giving the special instruction on the measure of damages requested by the defendant to be given before argument will not be considered, because it does not appear affirmatively that the instruction was in writing, and it does appear that in the general charge the damages were limited to -the pecuniary loss of the husband and child. The same rule would not apply to instructions requested to be and actually given before argument, because in the absence of any showing to the contrary, the presumption is that the court performed its duty under the statute by giving them in writing. Railway Co. v. Gilbert, 2 C. C.—N. S., 432.

Objection -is made to the following portion of the general charge:

“While the question of contributory negligence is not directly raised by the pleadings, yet it is possible that in the consideration of the evidence you may .find that both plaintiff and defendant were guilty of negligence, and that the negligence of each contributed directly to the injury.
" The same rule as to burden of proof I have stated above applies in the case of the defense of alleged negligence of the plaintiff, except that the burden of proof is upon defendant to prove the negligence of the plaintiff and the fact that the injuries resulted directly therefrom.”

The claim is that the defendant pleaded no affirmative defense, and therefore assumed no burden. The defendant might have relied on its general denial, and pleaded no further, or having so pleaded offered no evidence in support of it, and the result would have been the same; but if it elected to prove that the negligence of the husband alone directly caused the accident, the burden, although unnecessary, was thereby assumed.. The court did not intend, nor was'it understood by the jury, that the defendant was required to prove the averment, if content to rest upon its general denial. At all events the defendant was not prejudiced thereby.

The court also'charged the jury as follows:

“Even if the car was not running at what would ordinarily ' be an unreasonable rate of speed at that hour and that place, yet if at whatever rate of speed it was running the motorman saw this buggy on the track in time to have stopped his car or slowed up so as to have prevented the accident, it would have been his duty to do that, and if he carelessly or negligently failed to stop or slow up said car, and as a result ran the buggy down, the defendant was guilty of negligence. ”

This charge assumes that the car may have been running at a reasonable rate of speed and that the motorman saw the buggy and was therefore keeping a proper lookout, whereby the two alleged acts of negligence were eliminated. The vice consists in imposing upon the defendant the duty of stopping or slowing the speed of the car when the motorman saw the buggy on the track, regardless of the distance and opportunity the driver had to get off the track before the car reached him, or in holding it liable for negligence not charged in the petition to-wit: the failure to exercise due care after seeing the peril in which the occupants of the buggy were placed. The first duty is not required by law and the seciond is not pleaded.

It may be that the statement that the motorman saw the buggy does not necessarily imply that he was aware of the danger, and hence the doctrine of “last chance” would not apply; but if not, then the duty to stop or slow the speed of the car was too broadly stated.

The explanation, if such it be, given by the the court concerning special instruction No. 5 requested by defendant was not prejudicial, and therefore no ground for reversal of the judgment.

There being no certificate of the trial judge that the bill of exceptions contains all the evidence, we are not required nor permitted to weigh the evidence for the purpose of ascertaining whether the amount of the verdict is excessive.

There was no error in excluding the testimony offered as to width of space between the west rail and west curb on Lock-land avenue, south of Cliff street, as it does not appear how far south or what relevancy it had.

It is claimed the court erred in permitting the plaintiff to answer the following questions:

‘ ‘ Q. Now I will ask you, Mr. Haines, if the motorman of the south bound car, when he passed you, called out to you, ‘look out, boys, for the coming car. ’
“Q. Mr. Haines, when the motorman on the north bound car, after he had stopped, came to where you were, immediately after the accident, did he make use of these words ‘My God.’ he said, ‘I never saw jura, until I hit you,’ ”

the claim being that there was an abuse of discretion in allowing such leading questions on direct examination.

Counsel for defendant say in their brief:

“When witnesses for the defendant were on the stand they were asked on cross-examination by plaintiff’s counsel whether they had made the statements referred to in the questions above quoted, and they denied having made them. The purpose of putting the questions to Mr. Haines was to impeach defendant’s witnesses. ’ ’

This is true only as to the second' question, because the 'record shows that the statement in the first question was made by the witness himself in direct examination conducted by counsel for defendant. The rule in such case is stated in Starkie on Evidence, 169, as follows:

“Where'a witness is called in order to contradict the testimony of a former witness, who has stated that such and such expressions were used, or such and such things were said, it is the usual practice to ask whether those particular expressions were used or those things were said, without putting the question in a general form by inquiring what was said. If this were, not to be allowed, it is obvious that much irrelevant and inadmissible matter would frequently be detailed by the witness.”

It would seem from this statement of the law that there was no abuse of discretion in permitting Mr. Haines to answer the first question, but the second is of an entirely different nature, because it leads the witness to answer in words which the former witness has denied. On page 170 of Starkie it is said:

“Where a witness is called to prove affirmatively what a witness on the other .side has denied, as, for instance, to prove that on some former occasion that- witness gave a different account of the transaction, a difficulty may frequently arise in proving affirmatively that the first witness did malee such other statement, without a direct question to that effect * * * and it seems that the consideration of mere convenience ought not to operate at all, where the contents of a particular document, of the details of a particular conversation, are material to the issue."

In this case there could be no difficulty in proving affirmatively by Mr. Haines what words the former witness used, if his attention were directed to the particular subject-matter; but the most serious objection to the question is that the statement made by the former witness was not only material to the issue, but if true, determined the case in favor of the plaintiff. See, also, 2 Phillips on Evidence, 893.

The case of King v. Wicks, 20 Ohio, 89; Runyon v. Price, 15 O. S., 1, and Kent v. State, 42 O. S., 426, decide only that such testimony is admissible for the purpose of impeachment, and not that a leading question may be put.

While it is true as held in the third proposition of the syllabus in Evans v. State, 24 O. S., 458, “the mere fact that leading questions are improperly allowed on the-examination of a witness, although allowed as of right, is not' error for which, the judgment will be reversed, " yet on page 463 it is said:

“The allowing or refusing of leading questions in the examination of .a witness must: very largely be subject to the control of the court, in the exercise of a sound discretion. While we- do not say that a case may not arise in which there may be' such an abuse -of discretion .as to deprive the party of a fair trial, and thus call for the interference of this court, ^it is plain that the present one is not of that character. ’ ’

It is difficult' to conceive of a more extreme case than the one .before us. The plaintiff had.in the examination in chief of Mr. Haines attempted to introduce the declaration of the motorman, but the court properly excluded it because it was a mere recital of a past 'transaction not binding on the defendant as an admissionland if competent and true was conclusive of the main issue. in the. case.- Besides the statement in the question laying the foundation for impeachment and the one put to Mr. Haines are not identical, although the same in substance, the former being, “My'God', I didn’t see you until I hit you,” which in itself furnishes a good illustration of the uncertainty and danger of leading a witness upon a matter so important and of which his own recollection is the best evidence.

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


text:
    MUNICIPAL REGULATION OF MOTOR. VEHICLES.
    Circuit Court of Franklin County.
    Wm. Frisbie, a Tax-Payer, v. City of Columbus et al.
    Decided, March 22, 1909.

      Vehicle Licenses — Provisions of 99 O. L., 5S8, do not Inhibit Municipal Regulation of Motor Vehicles — Effect of Repeal of Unconstitutional Statute on Ordinance Previously Enacted — Jurisdiction for the Imposing of Special Licenses on Motor Vehicles — “Use" of Streets Means Continuous and Repeated Use — 98 O. L., 820.

    1. The provision of 99 O. L., 538, for the registration, identification, regulation and licensing of motor vehicles, does not inhibit municipal councils from passing ordinances requiring the licensing of such vehicles or from enforcing ordinances of that character which were in force at the time of the passage of this act.

      2. Inasmuch as the provisions of 98 O. L., 320, compelling the owners of such vehicles to register and forbidding local authorities from passing and enforcing ordinances for the regulation and 'licensing of such vehicles, are’ clearly unconstitutional, its repealing clause is not effective to prohibit the imposition of municipal licenses.
    3. Police regulation, supervision and control of the operation of motor ’ vehicles within the limits of municipalities, and the additional expense involved in the construction and maintenance of streets, justify the imposition of 'special licenses for the purpose of reimbursing the municipality, notwithstanding state licenses are also imposed.
    4. The doctrine announced in Pegg v. Columbus (10 C. C. — N. S., 1991, that the “use” contemplated by the vehicle ordinance of the city of Columbus as the basis for the exaction of an annual license fee must be continuous and repeated, is approved and followed.
    Error to Franklin Common Pleas Court.
    The opinion of Judge Dillon of the common pleas court rendered in this case on March 1, 1909, was as follows:
    “The question presented in this case is whether or not the act of May 9, 1908 (99 O. L., 538), providing for the registration, identification, regulation and licensing of motor vehicles, inhibits the councils of municipalities from passing ordinances requiring regulation and license of the same vehicles, or from enforcing' such ordinances already in .force at the time of the passage of such act.

      " The plaintiff in his petition complains of an ordinance passed by the council of the city of Columbus, March 20, 1905, being ordinance No. 21,927, which was passed for the purpose of licensing and regulating the use of the streets by persons who use vehicles of all kinds thereon. This ordinance requires, among other things, a license fee for each automobile of from $5 to $7.50, depending upon size..
    “The plaintiff is a tax-payer, and has made demand upon the city solicitor in accordance with the statute, and brings this action to enjoin the city officials from enforcing the said ordinance. He presents three reasons why the ordinance is invalid.
    “The first reason is, that the previous Legislature, on June 1, 1906, had passed a somewhat similar state law regulating and licensing motor vehicles (98 O. L., 320), by Section 19 of which local authorities were forbidden to pass and enforce or maintain any ordinance, rule or regulation requiring the owner or operator of any motor vehicle to take out any license, or interfering, with his free use of the highways, etc.
    “Whether this Section 19 of the act merely suspended the enforcement of any such -ordinance, or actually repealed any such ordinance, need not here be considered, for the reason that this act -of the Legislature has already been declared unconstitutional; and for that reason, therefore, did not repeal or affect the ordinance in question. Feasal v. State, 6 N. P.—N. S., 321.
    " This case was afterwards affirmed 'by the circuit court (not reported), and the reasoning of the assocate branch of this court is so clear that further comment upon that statute is unnecessary.
    “The second reason advanced is, that this ordinance is ill reality a tax, .and its only purpose is to raise revenue. This claim has so often been made in this court, and has received consideration at the hands of this court so many times, that comment upon this claim will be very brief.
    “The leading case in Ohio upon this subject is Marmet v. State, 45 Ohio St., 63, where the court, with the same questions before it, confirmed the power of the municipality within reasonable bounds to regulate .occupations by license and to compel the payment of a reasonable fee therefor, where such occupation consists of a special benefit conferred by the public upon those, who follow or practice it, or where such occupation imposes a special burden upon the public, or where it is injurious or dangerous to the public, and requires regulation.
    “That case involved only the ordinary driving of horses and vehicles' on the street, and had no reference to motor vehicles. Concerning, therefore, the somewhat innocuous occupation of driving a horse and bnggy on the street, the court observes that thousands of property owners use no vehicles of any kind; that those who do use vehicles are favored ones, and the court asks this question: ‘Why should not these favored ones pay a small sum toward making good that which they wear out ? ’
    “The court in that case also recognized that heavier wagons and heavier loads caused a greater burden upon the streets, and therefore should pay a larger fee, and that all these burdens upon the public should be determined in considering whether or not an ordinance was really imposing a tax for general purposes.
    “The court further held in that case that the fact that incidentally more money might be received- than was absolutely necessary to pay the expense of repairs of the streets and regulation of the traffic would not be sufficient to invalidate the act.
    “This second argument advanced by the plaintiff is further weakened by consideration of the nature of the vehicle in question. In addition to those things which may be charged against ordinary light vehicles, whose chief burden upon the public consists in wearing out the streets, we have in this case the additional burden of regulation of automobiles for a much higher purpose, of preventing injury to person as well as property. In addition, therefore, to the wear and tear upon the streets, whatever that may be, it is quite manifest that the entire police force of our municipalities are scarcely able today to cope with the violations of law committed by operators of automobiles. It is common knowledge that hundreds of these violations take place in the city of Columbus every day, and injuries to person and property are of common occurrence. If all the revenue, therefore, derived from this license were- devoted to the employment of special policemen alone, there trould still be a deficit for ordinary wear and tear upon the streets, etc., whether that be great or small.
    “The third reason advanced’by the plaintiff is that the ordinance applies equally to non-residents of the state as well as to persons residing therein, and provides for no exemption of any kind.
    “If this ordinance does apply to non-residents of the state, the argument as to its unconstitntionality could be no stronger, perhaps, than it if had expressly exempted non-residents of the state; but this court is of opinion that the question presented in this third argument is one of construction of the ordinance and not as to its constitutionality. If it be unconstitutional to tax a non-resident of the municipality, as it is claimed the ordinance in question attempts to do, then the ordinance would be void simply, as to such non-residents, and the court, construing an ordinance constitutional if it can be done, would hold that it applies to the regular and habitual users of the streets.
    ‘ ‘ This is the view which this court takes of this ordinance, and will be found discussed fully in the case of Pegg v. Columbus, 5 N. P. — N. S., 436. The holding of this branch of the court that such an ordinance as the one in question is constitutional has already been upheld by the circuit court (Pegg v. Columbus, 10 C. C. — N. S., 199), which court, however, differed from the court below with reference to the construction of the statute.
    “The plaintiff is a resident of the municipality, and therefore it is unnecessary for the court to reiterate its views with reference to its application to non-residents or transients passing through the city.
    “The court being therefore of opinion that a municipality is not forbidden by the statute named from enforcing or passing ordinances regulating the use of its streets, the demurrer to the petition will be sustained; the temporary restraining order heretofore granted will be dissolved, and the petition is dismissed at the cost of the plaintiff.”

      C. D. Saviers, for plaintiff in error.

      Marshall, Weinland & Hoover, contra.
    Allread, J.; Sullivan, J., and Dustin, J., concur.
   This action was brought to enjoin the enforcement of so much of the vehicle license ordinance of the city of Columbus as applies to automobiles and other motor vehicles. The plaintiff alleges that he is a tax-payer and citizen of Columbus, Ohio, and has made request of the city solicitor to bring the suit, and that the city solicitor has refused. The plaintiff shows no interest or right of his own liable to be affected. He does not show that he is an owner of an automobile or that he is otherwise affected by the ordinance. Serious doubt arises whether the plaintiff has such interest as to justify his bringing the suit (Cincinnati v. Dexter, 55 Ohio St., 93, 113). But in view of its importance. we have concluded to decide the main question as to the validity of the automobile license clause of the ordinance referred to.

The contention that the municipal license law as to automobiles and other motor vehicles was repealed by the act of 1906 (98 O. L., 320) can not be sustained. That act was clearly unconstitutional, was not even attempted to bo enforced, and the repealing clause is not intended' to be effective when the' act itself is void.

It is claimed, however, that the act of 1908 (99 O. L., 538) repeals by implication the act authorizing municipal licenses as to automobiles.

Repeals by implication are not favored, and it is only when the two acts are wholly repugnant and not capable of reconciliation that a repeal by implication is upheld. Sutherland, Stat. Constr., Section 52.

The general scheme of state licenses prescribed by the act of 1908 is not wholly ’ repugnant to municipal licenses. Upon many subjects upon which the state has prescribed general regulations, authority is also given for municipal legislation. And upon some subjects, the state prescribes a license and also permits an additional license by municipalities.

Many reasons can be urged for co-existing licenses by the state and municipalities. The streets of’ municipalities are under the special care, supervision- and control of the" city, and are subject of large expense in construction and supervision as well in police regulation. This would justify a special license. for' the municipality to reimburse it for special cost due to automobile use of the streets.

Three references are made in the .act' of 1908 to local regulations which may be considered on the subject of repeal by implication.

In Section 6 it is provided that “any person to whom an annual 1908 license has been issued by any municipality prior to the time when this act shall take effect shall be exempt” from state license until January 1, 1909. This provision reflects in some degree a legislative intent to substitute the statute for the municipal license, but is not conclusive as to justify a repeal by implication. The postponement of the state license may be explained upon other grounds.

In Section 23, local authorities are prohibited from regulating speed of motors except when special authority is granted over specific highways for speed tests or races. This section deals expressly with local regulations, and having expressed the subjects upon which the local authorities are denied the power of legislation, there is an inference that the Legislature did not intend to-deny any other power conferred by the then existing statutes. This inference in favor of existing municipal regulations not expressly repealed more than overcomes the contrary inference arising from the proviso in Section 6.

The reference to local authorities-in Section 15 does not aid in the construction of the act as to the repeal.

It is urged that the assessment of municipal licenses in every municipal corporation through which an automobile may be run would practically destroy the effect and purpose of the license granted by the state. - 'This contention would be very serious, if the municipal ordinance is to be so construed as to require payment of a license from every municipality into which an automobile may be run in traversing the highways of the state. This court has, however, in the case of Pegg v. Columbus, 10 C. C.—N. S., 199, construed the ordinance in question to apply only to a use of the streets which is .in some measure at least “continued or repeated.” This construction of the Columbus ordinance is in harmony with a reasonable .and fair use of the state license and at the same time sustains the Columbus ordinance as being a reasonable and fair charge for continued and repeated use of the streets by an owner or operator of an automobile. Marmet v. State, 45 Ohio St., 63.

The court is, therefore, of the opinion that the judgment of the common pleas court, dismissing the petition, should be affirmed.


text:
    EXPECTANCIES OF HUSBAND IN FIXING ALIMONY.
    Circuit Court of Lucas County.
    Eusebe Davis v. Jesse E. Davis.
    Decided, January 23, 1909.

      Alimony — Property of Husband at Time of Granting the Decree is the Proper Basis for Fixing — Halted Expectancies Gan Not be Regarded.

    “Expectancy” as applied to property which may be considered in determining a husband’s ability to pay alimony does not include the mere possibility of accession by inheritance from his living parents.

      W. T. S. O’Hara, for plaintiff.

      L. M. Murphy, contra.
    Wildman, J.; Kinkade, J., concurs; Parker, J., not sitting.
    Appeal from Lucas Common Pleas Court.
   This is an alimony ease, appealed from the court of common pleas, which entered a decree for alimony in favor of the wife to the amount of $2,000, probably basing 'the judgment upon an anticipation of large property some day coming to the defendant, Jesse R. Davis, by inheritance from' his father. Counsel, reserving all questions as to competency, agreed during the progress of the trial that the father of the defendant is at the present time worth about the sum of $20,000, the son having substantially no property in his own name. We have supplemented the research made -by defendant’s counsel seeking to ascertain whether the courts of the various jurisdictions of the country have been called upon to pass upon the admissibility of this class of evidence, or to put it in another form to ascertain whether they have determined that, in alimony cases, the court may aid itself in arriving at what would be a just allowance by recourse to the expectancies of the husband. We have been unable to find authorities in which the question is directly raised and passed upon; but cases are numerous to the effect that the property of the defendant as it existed at the time of the decree is the proper basis of the allowance, considering, of course, the necessities of the plaintiff and the nature of the case in o.ther respects. We feel quite clear that the evidence of .defendant’s expectancy of inheritance ought not to be taken account of by us. A mere naked expectancy is one which may never bear fruit; it may not result in bringing to the party against whom a .judgment is rendered any property whatever out of which a judgment might be satisfied, and the result of entering a large decree would be to impose upon him a burden of debt which he might never have the means of satisfying. Perhaps for this, among other reasons, courts have retained jurisdiction in many cases, so as to permit the modification of decrees at subsequent dates according to changed conditions.

I wish to call attention to some language in Mr. Bishop’s work on Marriage and Divorce with reference to the power of maintaining such continuing jurisdiction, but before doing that, in reference to the question which I have just been considering relating to the effect of the expectancy of a large property, we may properly refer to the section of our statute which malíes provision for alimony. It is Section 5699, Revised Statutes, and provides, substantially, that the court may allow alimony out of the property of the defendant. While counsel have agreed that’ the defendant’s father is financially responsible, or has property to the amount of $20,000 as estimated, there has been no concession that the father has not made a will and devised or bequeathed all of this estate in some other direction than to his son. For aught that appears, the father may have resolved in his own mind to this effect and he may even have erystalized that resolution in a valid will and testament disposing of the .property by gift to some other relative, to some charitable institution, or in some other way to have provided that it shall take a different course than to pass by descent to the son, and without any light on this subject it would be hard for us to say that the son has such an expectancy that ought to be considered here, oven if it were otherwise permissible.

The case of Cox v. Cox, 20 Ohio St., 439, is thought by counsel, for plaintiff to bear somewhat upon the decision of this question, and it does so, although it comes in the form of a dictum Of the Supreme Court. It is not necessary to read the ease, but it appears that after the allowing of a decree by an Indiana court, property came to the husband by inheritance. At a later date and subsequent to this accession to his property, a proceeding was instituted for alimony, in Ohio, and the Supreme Court held that this new property might properly be taken account of and judgment rendered accordingly; and in coming to that conclusion the Supreme Court expressed the dictum as follows:

“The court has a broad discretion in determining the amount of alimony. In a proper case there is no good reason why the court may not, among other things, look to and regard what the husband has in expectancy, .as well as that which he has in possession. Here, however, the court were not called upon to do so. The expectancy had become realized and become part of the husband’s estate.”

This language is entitled to the highest respect, but it not authoritative as it would have been if essential to the determination of the case considered by the Supreme Court.

In 2 Bishop, Mar. & Div. (Ed. 1891), Section 895, the author uses this language:

“If the husband has a vested estate, of which he is to have possession only on the death of another person, so that it brings him no immediate income, yet it is a thing of value under his control, some estimate must be made of it among his faculties. Precisely its effect will depend on shifting complications of circumstances, not admitting of being stated in the form of a rule. ‘I think,’ said Dr. Lushington, ‘that with regard to permanent alimony the court would make a different allotment in a case where the income of the husband was derived from his sole personal labor or exertions, from what it would do when he had moreover a large reversionary property in expectancy.’ ”

Now it is probable that the Supreme Court, in the language to which I have referred in the case of Cox v. Cox, supra, intended by the expression “expectancy” just such an expectancy as Mr. Bishop mentions in the paragraph a part of, which I have read. The author was not considering a mere naked expectancy. If we should so interpret the language of the Supreme Court of Ohio, it would be altogether consistent with the general current of authority holding that all the powers of the husband, his bodily and mental health, his skill as an artisan or a professional man, his power to earn wages or a salary, may be taken into account. We are inclined to the view that we ought not to take into account the estimated value of Jesse Davis’ expectancy of inheritance and base upon it a decree of alimony against-him. It may be a matter to consider determining whether or not we shall decree alimony in gross, or whether we shall retain jurisdiction of the case for such consideration as we might have the power and right to give it upon any changed circumstances of the parties.

I will not go over the evidence which has been offered concerning these parties, the conditions of their health, the necessities of the one or the ability to supply them on the part of the other.

We have concluded to render a decree for alimony to the amount of two dollars a week, and we will retain jnrsidiction of the case for such consideration as may be proper in the future and as we may have the right to give. The order which we make does not disturb any order which may have been made as to temporary alimony, nor does it of course disturb in any way the order which’ the court of common pleas has made as to the maintenance of -the child, the custody of which was given to the wife. As to that we have no power of interference.


text:
    CONSTRUCTION OF THE COMPULSORY EDUCATION ACT WITH REFERENCE TO VACCINATION.
    Circuit Court of Franklin County.
    The State of Ohio v. L. M. Turney.
    Decided, January Term, 1909.

      Schools — Child Expelled Because not Vaccinated — Parent Prosecuted Under the Compulsory Education Act — Limitation on the Power of Boards of Education to Make and Enforce Rules — Section 3986.

    A parent wbo sends his child to a public school and is willing to continue to do so, but the child is excluded for failure to .comply with a rule of the board of education requiring vaccination, is not liable to conviction under the compulsory education act.

      Chas. E. Carter, Assistant City Solicitor, for plaintiff in error.

      David K. Watson and Dewitt C. Jones, for defendant in error.
    Allread, J.; Sullivan, J., and Dustin, J., concur.
   The question involved in this ease is whether a parent can rightfully be prosecuted and convicted under the compulsory education act, when he sends the child to school and is willing to continue, but the child is excluded for failure to comply with a rule requiring vaccination.

The compulsory education act provides that “every parent, guardian or other person having charge of any child between the ages of eight .and fourteen years, .shall send such child to a public, private or parochial school,” etc., and .that “any parent, guardian or other person having the care of a child between the ages of eight and fourteen years who shall, in violation of the provisions of this section, fail to place such child in school, " etc., shall upon conviction, be fined, etc.

It is a fundamental rule, applicable to all penal laws (State v. Myers, 56 O. S. 350), that “a statute defining a crime can not be extended by construction to persons or things not within its descriptive terms, though they may appear to be within the reason and spirit of the statute. Persons can not be made subject to such statute by implication. Only those transactions are included in them which are both within the spirit and letter; and .all .doubts in the interpretation of such statutes are to be resolved in favor of the accused.’’

Section 3986, Revised Statutes, provides:

“The board of each district may make and enforce such rules and regulations to secure the vaccination of and to prevent the spread of small-pox among pupils attending or eligible to attend the schools of the district, as in its opinion the safety and interest of the public require.”

Under this authority the board of education of the city of Columbus adopted a rule that no pupil should attend any public school, unless the pupil shall have had the small-pox or been vaccinated.

It may be noted that Section 3986 is found in a chapter entitled “provisions applicable to all boards.”v It does not pretend to be penal.

The terms “send such child to school” and “place such child in school, ’ ’ found in the compulsory education act, may be read together and as synonymous, and may and probably do ex vi termini include such preparation and conformity to usual rules as reasonably follow from the use of these terms in popular and general acceptation.

The compulsory education act was obviously intended to meet the cases where the parent was indifferent to the attendance of the child, and made no effort to cause the child to attend the schools. The act was certainly not intended to be used as a means of enforcing any rule which the board of education in the plentitude of its general powers might see fit to adopt.

Such a construction would give the board of education the power by indirect means of criminal legislation not only against the pupil but the parents.

To so hold recpiires clear legislative expressions and the authority can not be sustained by inference or implication. The accused is to have the benefit of the doubt.

It must be observed that after conferring upon boards of education general power to make rules, special authority is conferred by the Legislature as to vaccination.

By the clear weight, if not the -universal trend of authority, it is held that a general order or rule adopted by a board of education requiring vaccination of pupils., except in the emergency of an actual impending epidemic, can only be sustained by direct and specific legislation. Potts v. Breen, 167 Ill., 67; Mathews v. Bd. of Ed., 127 Mich., 530; People v. Bd. of Ed., 234 Ill., 422; Adams v. Burdae, 95 Wis., 390; Osborne v. Russell, 34 Kan., 507; In re Smith, 146 N. Y., 75.

Crew, J., in State, ex rel, v. Board of Education, 76 O. S., 297, holding valid the rule of the board of education excluding a pupil not vaccinated, expresses as one of the grounds of the decision that no question of compulsory vaccination was involved, but only the right of exclusion from the public schools. He quotes with approval from the case of Bissel v. Davidson, 65 Conn., 183, that the statute providing for vaccination “does not authorize or compel compulsory vaccination. It simply requires vaccination as one of the conditions of the privilege of attending the public school.”

These cases rest upon the well-recognized principle that acts derogatory of common right and abridging personal liberty are, like penal laws, to be strictly construed in favor of the citizen, and that the Legislature alone as the sovereign power can declare the necessity, and it must do so expressly; otherwise the intention will not be inferred.

The power delegated by 'the legislative act to the board of edrTeation is to “make and enforce such rules and regulations, etc., to secure vaccination,” etc.

Under the rule of strict construction the delegation of power to the board to “make and enforce” rules does not contemplate any other penalty for a violation of the ride than those which the board has authority to inflict, viz., suspension or exclusion from the schools of which they have control.

This conclusion is directly supported by Commonwealth v. Smith, 7 Pa. Dist. Repts., 625, and a dictum in Morris v. City of Columbus (Ga.), 42 L. R. A., 175. The contra is found in the opinion of Mathews v. Bd. of Education, supra.

The holding of In re Smith, supra, is that express legislative authority is required to quarantine a citizen who refuses to be vaccinated. It does not follow from a law giving general authority to the board of health to adopt rules.

Counsel for the board of education contend that the exclusion of the child from the public schools does not relieve the parent from the obligation under the compulsory education of seeking its admission into a private or parochial school.

While it is true that the parent is required by the act to send his child to a public, private or parochial school, yet the election is with the parent. The character of our system of public schools and the manner in which' they are sustained, do not justify us in holding that where a child is excluded from the public schools — because in some degree supposed to be an “undesirable citizen” — that the parent is compelled to seek its admission in a private or parochial school.

There is no presumption that the child if rejected by the public schools would be received in a private or parochial school, or a school of some other district, and therefore in the last analysis the question of compulsory vaccination comes up.

If exclusion for failure to comply with the rule of a public school as to vaccination is no defense to a prosecution under the compulsory education act, then the exclusion for violation of a similar rule as to private or parochial or other district schools would be no defense, and we would then be face' to face with a compulsory vaccination law.

Besides the father elected to send his child to the public school, and claims that he did so, and offers to continue to do so. The validity of his convictions must rest upon proof of his sending or failing to send his child to the public schools.

There is no claim that the violation of the rules was a color-able pretext to justify a child of truant disposition and screen an indifferent parent. The evidence’ shows the child was willing to go to school and the parent anxious to have it go.

In this state of facts the conviction was unlawful and the judgment of the court of common pleas reversing the conviction and discharging the defendant is affirmed.


text:
    COMPETENCY OF PAROL EVIDENCE TO SHOW THAT NOTES WERE NOT TO BECOME EFFECTIVE WITH DELIVERY.
    Circuit Court of Lucas County.
    Starr Piano Company v. Martha J. Edgar.
    Decided, January, 1909.

      Negotiable Instruments Law — Delivery of Notes Secured by Chattel Mortgage — Oral Agreement as to When Notes are to Become Effectual — Construction of Section SlIOo — Burden of Proof — Evidence.

    It is clear that under Section 317Qo of the negotiable instruments law, it is admissible to prove by parol evidence that a promissory note was not intended to become effectual until the happening of a specified event at some date subsequent to its delivery; and im asmuch as a chattel mortgage is an incident only of the debt and can not be made any more than that by its terms, the rule is not changed by the fact that the note ig secured by such a mortgage.
    Kxnkade, J.; Parker, J,, and Wildman, J., concur.
   This was an action in the court below to recover the price of a piano alleged to have been sold to the defendant by the Starr Piano Company. Judgment below was rendered for the defendant and the case is here on error to reverse this judgment. Counsel stated in opening the case that the main ground of error is that the veridet was not supported by the evidence and is against the evidence; also that incompetent evidence, parol evidence, was admitted to vary the terms of a written contract. I may say that in the matters other than those two points we find no error, and we may dismiss the balance of this case.

On this point of the evidence not being sufficient to sustain the verdict and on the incompetency of the evidence we have given the case and the authorities cited by counsel as close attention as we can give it. It is contended, -taking up first the question of the incompetent evidence said to have been admitted, that inasmuch as the defendant in the ease, Martha J. Edgar, went to the store of the Starr Piano Company, and there had some form of negotiations or dealing or talk that resulted in the execution of forty-five or forty-six notes and a chattel mortgage securing the same, that any parol evidence as to what took place at the time between the representatives of the Starr Piano Company and the signer of the notes and the mortgage must be excluded; that the maker of the notes and mortgage is entirely concluded by the written ’contract thus evidenced by the notes and by the mortgage, and that the parol proof which sought to attach a condition, to-wit, that Mr. Edgar should be satisfied with the price,, if not with the piano, was wholly incompetent; and I think it may be conceded that without that proof the judgment could not, of course, be maintained.

It is contended here by the plaintiff in error that there is clear prejudicial error on the part of the court in admitting that proof. Our attention is called to 52 O. S., 64. The first clause of the syllabus is:

“Evidence of a parol agreement made at the execution and delivery of a note, by which it is not to be operative, unless, within a givén time, the makers are able to realize a given sum of money from property purchased,’ and for which the note was given, is not competent:”

This is a case in which a note was. given for a patent right, and it was sought to prove in defense of an action brought to recover on the note, that there was a verbal agreement at the time that if the party were not able to make $1,750, if I have that amount correct, out of the patent by the time the note fell due, the note was to be null and void, and the Supreme Court said this evidence, relating to a condition subsequent, violated a written contract, and was at variance with the rule that parol evidence, should not be permitted to disturb the certainty of a contract reduced to writing. And counsel cites this case as authority for the present case.

It is contended by counsel on the other side that this evidence is competent for the reason that it tends to show that no agreement was ever entered into and that any evidence which . thus tends is competent. If it is evidence that tends to show that the notes and mortgage were delivered for a specific purpose, but were not to become operative until the happening of an event, that that must be a condition precedent, and that evidence of that kind is admissible for the reason that it tends to show that no contract ever existed at all; it does not vary the contract, but simply shows that no contract ever existed, and we are cited to a large number of authorities on that point collected in the Digest, and Sections 578 et seq. of Elliott on Evidence, and a large number of authorities, all of which we have examined, and a good many of which may perhaps justly be claimed to be at variance with the 52 O. S. Reports. But counsel for the defendant in error contends that no matter what the rule may be on the law generally, that he is not obliged to rest the defense on that ground, on account of the peculiar wording of our negotiable instrument law which took effect the first day of January, 1903, and particularly as found in Section 3171o. That section reads: '

“Every contract on a negotiable instrument is incomplete and recoverable until delivery of the instrument for the purpose of giving effect thereto. As between immediate parties, and as regards a remote party, other than a holder in due course, the delivery, in order to be effectual, must be made either by or under the authority of the party making, drawing, accepting or endorsing, as the case may be; and in such case the delivery may he shown to have been conditional, or for a special purpose only, and not for the purpose of transferring the property in the instrument. But where the instrument is'in the hands of a holder in due course, a valid delivery thereof by all parties prior to him so as to make them liable to him is conclusively presumed. And where the instrument is no longer in the possession of a party whose signature appears thereon, a valid and intentional delivery by him is presumed until the contrary is proved. ’ ’

Under the section the burden, of course, with the notes and the mortgage found in the hands of the piano company, of proving they were not delivered and the condition did attach, if admissible at all, is- on the defendant in error in this case. We have read the evidence through as to what the witness said concerning this whole -transaction. It is a case that' was tried to a jury below and a verdict returned for the defendant.

The question first -that we have to determine is as to the competency of this evidence, whether you may prove by parol that a promissory note was'not intended to have effect, was not delivered so as to have effect, and that if it took effect at all, it was to be on the happening of a given event at a later date subsequent to the delivery. We are very clear that under this section of the statutes that may be done with reference to a promissory note.

It is said, however, that the chattel mortgage in this case excludes such proof, because by the terms of the chattel mortgage which are set forth in plaintiff in error’s brief, the. parties ha've there declared that the notes have been delivered, that they there declared that which is equivalent to saying that the notes have been delivered, and that they have been delivered with a view of taking' immediate effect, and that the contract has gone into effect, and conséquently that they have fixed it by the chattel mortgage as a condition subsequent which takes it out from under the scope of Section 3170 and places it squarely under the decision in the 52 O. S., page 64.

There is some force in this contention of counsel, and we have Considered it and considered it fully, and we think the chattel mortgage is only an incident of -the debt, and regardless of its terms can be held to be nothing more; that if the debt fails, the mortgage fails also, the security being only an incident to the debt.

Therefore we find that -there is no -error in the court of -common pleas in admitting the parol proof, for the purpose- of establishing a condition which Mrs. Edgar contends existed with reference to the -execution and delivery of the notes and- mortgage.

And this leaves but the other question, as to whether the evidence in this case sustains the verdict for the defendant. There is considerable conflict in the evidence between Mr. Robison and Mr. .Wheeler and Mrs. Edgar as to what took place, and be.tween Mrs. Bergeron and Mrs. Price and the .other ladies at whose h-ous-e she called, as to what she said there along the line of impeaching her testimony. There is a good deal of conflict in the evidence and we think it is precisely the kind of a case that a jury is far better qualified to settle than a court. We have read it with a view of determining whether the evidence in the case sustains the verdict. Every presumption is in favor of the verdict and we should not disturb it, unless it is manifestly against the weight of the evidence. We have read the evidence with care and some points perhaps in the argument of counsel for plaintiff in regard to the evidence may be said to be well taken, but upon the whole we think the evidence in this case justifies the verdict, and we are very clear that the evidence does not justify this court in disturbing the verdict, and for that reason the judgment of the court of common pleas rendered upon this verdict will be affirmed. '


text:
    RESTORATION OF MONEY TO INSOLVENT AFTER. ASSIGNMENT,
    Circuit Court of Richland County.
    M. J. Friedman et al v. Adam Mitz et al.
    Decided, January, 1909.

      Debtor and Creditor — Fraudulent Transfer of Money in Contemplation of Assignment — Money .Restored to Assignor After Assignment— Action by Creditors for an Accounting.

    One who with knowledge .of the insolvency of another and his contemplated general assignment for the benefit of creditors, receives from the insolvent a large sum of money and gives due bills therefor, holds the money in trust for the creditors, and can not absolve himself from liability tlierefor to the creditors by returning the money to the insolvent personally after the assignment has been made, especially where there was no disclosure to the assignee of such restoration.

      Cummings, McBride & Wolfe, for the plaintiffs.

      Douglass & Mengert, contra.
    Taggart, J.; Donahue, J., .and Shields, J., concur.
    Appeal from the Common Pleas Court of Richland County.
   The plaintiffs, a partnership, brought suit against Adam Mitz and Michael Saunders, alleging that shortly before August 27, 1904, the said Mitz, in contemplation of insolvency, and with the intent to delay, hinder and defraud the plaintiffs and other creditors, secretly and fraudulently transferred to defendant, Michael Saunders,' $3,800 in money; that, at the time of said transfer'and assignment, Saunders had full knowledge of .the insolvency of said Mitz and full knowledge of the purpose of said assignment; and that said Saunders, in furtherance of said fraudulent design, and for. the purpose of defrauding the creditors -of said Mitz out of said money and property, accepted said money. That, shortly thereafter, on August 27, Mitz executed and delivered to one Mr. Marquis his deed - of assignment conveying .all of his property to be administered by said Marquis for and on behalf of his creditors. Said deed was duly filed in the probate court and the assignee duly qualified, but, -on. -account -of said fraudulent -. transfer, none of the said money ever came into the hands of the assignee and was not administered for -the benefit of the creditors. That, in the administration -of said trust, there was applied to the .payment of plaintiff’s claim $44.95 and no more; and that they made a demand in writing on said Marquis, as said assignee, to recover said property so fraudulently conveyed, and that said Marquis has failed and neglected so to do. They pray that the transfer of said money fr-om Mitz to Saunders- be declared void, as against the creditors -of Mitz, and that h trustee be appointed to administer that property to the equal benefit of all creditors and for other relief.'

To this petition the defendant, Saunders, filed his a'nswer. In the second paragraph of his answer he -admits that Mitz, some time before the assignment, placed in his hands $3,800 in money. The dates of the payments are set out and are between August .10, 1904, and August 27, 1904. He further alleges that, at the time he .received this m-oney, he 'delivered, -to Mitz due bills and sets forth copies of the due bills. In the 'third paragraph of the answer he says that on October 24, 1904, Adam Mitz demanded said money and it was turned over to him on said-date, and that he has not since had any of said money; that,-while he-had said money in his’ possession^ he did use some of it in. his business, but that on demand the whole amount of it was repaid to Mitz on October 24; 1904. • ■ ,

It thus appears from the pleadings and the admitted facts in this case that Saunders, with the knowledge that Mitz was insolvent and contemplated a general '.assignment for the benefit of his creditors, received from Mitz, shortly prior to August 27, 1904, $3,800; that, on August 27, Mitz made a general assignment of all his property for the benefit of all his creditors; that thereafter, about October 24; Saunders claims he returned this money to Mitz, he then knowing that the assignment had been made. It is admitted in this ease that the plaintiffs are a partnership and that they are creditors of Mitz.

Upon this state of facts, it is contended, although the original payments by Mitz to Saunders were made with the knowledge of insolvency, and that Mitz contemplated an assignment, that Saunders is absolved, if the proof establishes the fact that he has paid the money over to Mitz on demand. .With this contention we are not in accord.

When Mitz made an 'assignment -to Marquis, he transferred all of his property to Marqiiis, he assigned his-personal property and conveyed his real estate. The property ceased to be the property of Mitz; he ceased to be the owner thereof. It was then the property of Marquis, as -trustee for the benefit of his creditors. Marquis was the trustee, the creditors were the cestui que trust. This money became impressed with this same Character as much as any other personal property. Therefore, if this fraudulent transferee desired -to piirge himself from any personal responsibility or to secure immunity from accounting for the same, it became his duty to return it to the person or persons entitled thereto. He had no right or authority to transfer it or return it to Mitz, because Mitz was not entitled to receive it and the payment or return to him would not absolve Saunders from liability.

This is the holding in Swift v. Holdridge, 10 Ohio, 230, 231. Judge Lane, speaking for the court, says:

“An honest man will not take a fraudulent conveyance. Tf a man holds property fraudulently conveyed, as soon as he comes to a sense of his moral duty,lie will restore it to those to whom it belongs; he ought to give it back to him from whom he received it, that it may be applied to his debts if wanted, or to his benefit if not necessary for this purpose. The law, to discourage frauds, does not compel him to restore it to the fraudulent grantor, yet no man will retain it for a moment who desires the reputation óf honesty or' possesses a sense of justice. ’ ’

It appears from the testimony in this case that Saunders not only did return it to the fraudulent grantor or transferrer, but he remained quiet, made no disclosure to the assignee in trust for the benefit of his creditors. In our opinion, after the assignment was made, he had no right whatever to turn this money back to Mitz.

It is objected that proof of repayment ought not to have been admitted, but we think -that that does not absolve. Saunders, and his statement-that he gave it back to Mitz only gives color and force to tha-conclusion that this -disposition of the money: was a cunningly devised scheme to cheat and defraud the creditors, and if that is -to meet the approval of a court of justice, then we have discovered a new and sufficient way to commit a fraud and receive tile Sanction of a -court -of equity.

Let us suppose that Mitz had died, and Saunders, attempting to absolve. himself from personal responsibility had sought to restore the property to whom it belonged, the only person to whom he could have returned the property would have been the administrator of Mitz, in which event it would have been applied to the payment rf Mitz’s debts. As we have said, when the assignment was made, there was a trust imposed upon this property, and we think the statement in Robertson v. Desmond, 62 Ohio St., 487, 498, has peculiar application:

“The trust imposed upon the property remained unimpaired; and also the right o£ any one of them [referring to creditors] to commence -a suit in the proper court, making necessary parties, to have the character -of the transfer ascertained and determined, and a trustee appointed to administer the trust. Whether Robertson retained the property or not in no way impaired this right. If he had retained the property or disposed of it, other than by restoring it to Roth, a different case would have arisen. In such a case he might as well have been required to account for it at its value. This is fairly deducible from accurate principles as well as from the following cases: * * * That these cases relate to instances where there had been a fraudulent convenyance does not affect the principle upon which they proceed. So far as moral turpitude is concerned, there is little or no difference between one who takes a conveyance in fraud of creditors and one who takes a conveyance of trust for the benefit of one or more creditors. ’ ’

Therefore, we think this transfer of this property should be declared to be a fraud on the rights of creditors, made with the intent to hinder, delay and defraud them and, as the proof does not show that there was a restoration on the part of Saunders to the parties entitled thereto, he should be held responsible and to account for the same.

The judgment and decree of the court may be entered in accordance with this opinion.


text:
    CORRECT TITLE NECESSARY IN PROCEEDINGS IN ERROR.
    Circuit Court of Lucas County.
    Samuel S. Ricard v. George F. Porter.
    Decided, January 23, 1909.

      Error — Proceeding in Essentially a New Case — Can Not be Instituted in the Name of a Decedent and Executor Thereafter Substituted— Jurisdiction — Service of Summons — Waiver.
    Waiver of service of summons in a proceeding in error against a deceased person by an attorney for the executor of the deceased gives the circuit court no jurisdiction, and the plaintiff in error can not cure the defect by adding or substituting the name of the executor.

      W. A. Gill, for plaintiff in error.

      Potter & Potter, contra.
    Wildman, J.; Kinkade, J., concurs; Parker, J., not sitting.
    Motion to dismiss petition in error.
   This case was begun in the court below by Samuel S. Ricard against George F. Porter, but Porter having died pending the suit it was revived as against his executor, Henry E. Fletcher. Instead of bringing the proceeding in error in this court against the executor as defendant in error — the judgment being in his favor in the éourt below upon his substitution for the original party who had died- — a proceeding was instituted in this court bearing the same title as the ease had borne in its inception in the court of comon pleas, to-wit, Samuel S. Ricard against George F. Porter. Counsel seem, by some inadvertance, to have overlooked the fact that a proceeding in error is essentially a new case, requiring a petition and service of summons, or waiver thereof by the defendant; that it is not like an appealed case which goes into the appellate court bearing the same title which it had in the court below, and without the necessity of service of process of any kind upon the defendant. To cure the trouble, plaintiff in error asks leave to amend his petition by adding or substituting the name of the executor for the name of the decedent. We have examined the authorities, which are somewhat meager, bearing upon the question, to determine whether jve have jurisdiction upon which we can base any authority to permit the amendment of the petition — which we should be glad to do if we had the power to do it — but we are confronted with the case of Kennard v. Kennard, 35 Ohio St., 660, where a situation arose not precisely the same, but so near it as -to throw great light upon our duty. The syllabus is as follows:

“Proceedings in error can not be instituted in the name of a deceased party; if the heirs or legal representatives of such party seek to institute such proceedings, they must do so in their own names. ”,

The petition in error in the cited ease which went up from Butler county to the Supreme Court, was filed on September 22, 1879, to reverse a judgment rendered by the district court of Butler county, April 21, 1877, in favor of George W. Kennard against George G. Kennard. At the time of the filing of the petition in error the nominal plaintiff 'in error was deceased, he having died on April 8, 1878. Mary Ann Bartlow and others, his heirs at law, moved the court to revive the proceedings in error in their names. The decision is per curiam. It is very short and I will read it:

“George G. Kennard, the alleged plaintiff in error, having died before the filing of the petition in error, the attempt to institute a proceeding in error in his name was ineffectual. To constitute a proceeding in error, there must be .a plaintiff in error. If there is no plaintiff in error, the court acquires no jurisdiction of the cause. If the heirs or legal representatives of a deceased party seek to institute proceedings in error they must do so in their own names, and not in the name of the deceased.
"Motion overruled and cause stricken from the docket.”

This was a case where the nominal plaintiff in error was the person deceased. In the case before us it is the •nominal defendant in error, but the language of the Supreme Court and the reason for it manifestly are as pertinent to the one case as to the other. It is as essential that there should be a defendant as that there should be a plaintiff, and if there is no defendant in error, then upon parity of reasoning, .the court has no' jurisdiction of the case. The court there refused the application of the legal representatives to revive the proceeding in .error in their names, and that is substantially the same as the attempt which is made here to amend the pleading by substituting the name of the executor for that of the decedent. We see no' escape from this case, and, indeed, before discovering it, we felt strongly impelled by our own reasoning to arrive at the same conclusion.

The case of Kennard v. Kennard, supra, was approved, without report, in Waldron v. Fuchs, 62 Ohio St., 633. The ease of Smetters v. Rainey, 14 Ohio St., 287, is somewhat in point and it was approved in Burke v. Taylor, 45 Ohio St., 444, and should be read in connection with the case to which I have referred. The case of Abair v. Bank, 3 C. C., 290, decided by the circuit court of this circuit, the opinion being pronounced by Judge Scribner, is also to some extent in point. I cite it without reading it.

Our judgment is that the motion for leave to amend the petition should be overruled and that the motion filed by the executor for a dismissal of the petition in error should be sustained.


text:
    FAILURE OF PROOF AS TO AGENCY.
    Circuit Court of Hamilton County.
    Kauther v. Vigransky et al.
    Decided, December 19, 1908.

      Error — Not 'Material, When — ’Verdict Sustained by Evidence — Alleged Agency in the Sale of Real Estate — Claim of Fraud not Supported.

    Errors of law, if any occurred during the trial of the case, are not prejudicial where the verdict is fully sustained by the evidence.,

      Walter Schmitt, for plaintiff in error.

      Prescott Smith, contra.
    The plaintiff was the owner of property -on Martin street, Cincinnati, and alleged that the defendants represented to him that they had a purchaser for -$1,000, and the property was sold at that figure. Plaintiff alleged that he subsequently learned that, the real price paid to defendants for the property was $1,200, and he sued for the $200 difference.
    Smith, J.; Swing, P. J., and Giffen, J., concur.
   Upon examination of the record in -above case -the court is of the opinion that the verdict is fully sustained by the evidence. The evidence does not substantiate the claim of plaintiff in error as set up in the petition, that defendants were his agents and that fraud was practiced upon him. On the contrary, he emphatically denies such relationship and practically admits the claim of defendants in error.

Any errors of law that may exist, if in fact any such do exist, are therefore not prejudicial- to plaintiff in error and the judgment of the trial court is -affirmed.