text:
    MONEY PAID BY A MUNICIPALITY BY MISTAKE.
    Circuit Court of Cuyahoga County.
    The L. R. & J. Smith Company v. The City of Cleveland.
    Decided, December 28, 1908.
    Money voluntarily paid by a municipal corporation to a contractor on a claim for extras allowed under a misconstruction of the terms of the contract between the parties can not he recovered back, in the absence of fraud or mistake of fact.

      Goulder, Holding & Hasten, for plaintiff in error.

      Newton D. Baker, contra.
   Marvin, J.; Winch, J., and Henry, J.,

concur.

The relation of the parties here is the reverse of the relation in which they stood in the court of common pleas. The terms plaintiff and defendant as used in this opinion will refer to the parties as they stood in the original action.

The plaintiff is a municipal corporation, and the defendant is a business corporation.

The plaintiff sued to recover from the defendant the sum of $1,903.44, which was paid by the plaintiff to the defendant on the 16th of July, 1898. The petition alleges that this payment was made in pursuance of a fraudulent conspiracy between the defendant and one George R. Warden, then director of public works of the city of Cleveland, that a claim was presented by the defendant which was fraudulent and that Warden, as director of public works, fraudulently approved the claim, as a result of which the claim was paid.

This matter grew out of work done by the defendant under a written contract entered into between the plaintiff and the defendant on the 24th day of March, 1897. Under this corn tract the defendant undertook to lay a 48 inch riveted steel water main in Spruce street across Sycamore street slip in the city of Cleveland. This was to be done under plans and specifications set out in the contract, from which it appears that the work was to consist of removing a portion of the dock on the north side oE Sycamore street slip, excavating a trench and laying a forty-eight inch riveted steel pipe across the slip and then restore the dock on the north said side and the piling on the south side to their original condition. Certain excavation was provided for in this contract, and it was provided that the-contractor must assume all risk as to the material to be excavated. Another of the provisions of the contract reads:

“A portion of the dock on the north side of the slip will have have to be removed to make room for the excavatiog and laying of the pipe. A few piles on the north side of the slip may also have to be removed.”

A further provision of the contract is:

“That portion of the dock and all piles that are removed or that are in any way disturbed, must be rebuilt or redriven after the pipe is laid and trench refilled. Any timber piles, etc., damaged in any way must be replaced with new material. If the old piles that are removed should be found of less length than 34 feet below the city base of levels, four new piles will have to be furnished and driven two on each side of the pipe, of the length as shown in plan.”

Another provision was:

“Any work or material incidental to and necessary for completion of the work must be furnished by the contractor without extra charge, although the same be not mentioned in these specifications or shown on the plans. ’ ’

A further provision was:

“No claim for extra work shall-be made, unless the same be done in pursuance of a written order from the Superintendent of Water Works, and the price to be paid therefor1 agreed upon before hand; said order to be given prior to the doing of said extra work.”

The entire amount to be paid for the work thus contracted for was $1,800. .

As the work progressed it was found that by reason of quick sand, a great amount of w^ork was necessary to prevent the docks in the immediate vicinity from giving way or being injured, and that a considerable number of piles had to be put in and certain bolts and spikes used, which the defendant claimed was not a part of the work to be done under the contract. The fact that this work must be done was reported to the superintendent of water works by the defendant, and the claim is made by the defendant that he directed the work to be done. However, no written order for any of this work, claimed by the defendant to be “extra,”, was given, but, on the 30th of November, 1897, the defendant presented a bill to the officers of the plaintiff for “extra” work, amounting to $1,903.44 in the aggregate. After a considerable time and after consultation between the superintendent of water works and the director of public works and the law department of the city, this hill was approved by the director of public works and thereafter paid.

The claim on the part of the plaintiff is that all of the items of this bill are for work and material provided for in the original contract, and that there was no authority for its payment, and that the plaintiff is therefore entitled to recover it back. The defendant denied all fraud; averred that the work and material included in this bill for “extras” was outside of the contract, and that it was ordered by the proper officer of the city, and as a further defense, alleged that the payment was voluntarily made by the city, and that by reason of this voluntary payment the plaintiff was not entitled to recover back the money paid.

The result of the trial in the court of common pleas was a verdict and judgment for the plaintiff for the entire amount.

A motion for a new trial was made by the defendant, which was overruled, and by proper proceedings the case is here for review.

The court took from the jury the issue of fraud, saying there was no evidence tending to show any fraudulent conspiracy on the part of the defendant and the director of public works, and that the plaintiff, if it recovered at all, must recover without there being any element of fraud in the case.

And then the court said:

“If by reason of the slope at which the trench was dug, or it by reason of quicksand encountered in making the excavation, or if by reason of boats or other craft passing in the slip, before the trench was refurnished with dirt or if by reason of any other cause not attributable to the city, the surrounding soil sank or gave way and thus caused the disturbance of the dock and piles which were restored by the defendant, the defendant in making such restoration would be doing merely that which it was required to do by the contract between the parties, and the work and material furnished by it in so doing would not be extra work and material. ’ ’

We are not prepared to say that this was a misconstruction of the contract, but if the parties, to-wit, the defendant and the proper officers of the city construed it otherwise, their misconstruction was a mistake of law and not a mistake of fact,

The court said also to the jury that the burden of proving that no written order for the "extra” work was given to the defendant was upon the plaintiff. This last instruction is not and could not be complained of by the defendant, because it was admitted by it on the trial, that no written order for this extra work was made, and since the matters specified in that part of the charge, hereinbefore quoted, substantially included all that was claimed by the defendant as extras, 'there was practically nothing left for the jury to consider as to whether the defendant was entitled to recover anything on its bill against the city.

On the matter of the voluntary payment the court said this to the jury:

"However, there is another principle of law to be considered in this connection, which is that notwithstanding the claim against the city was illegal and no action could have been maintained thereon against the city, yet if the city, through its proper disbursing officers, voluntarily paid the same, it can not recover back the money so paid, where the work paid for was actually done by the claimant for the city, and was not work which the claimant was required to perform for the city. So you will see, gentlemen, that the plaintiff’s right of recovery here is not determined merely by your finding that the Superintendent of Waterworks did not give a written order previous to the doing of the alleged extra work in question. In order that the city may recover it must be further shown either that the work paid for was not done by the defendant or that the same was work which the defendant was bound to do by the written contract between it and the city.”

"All of this is complained of by the defendant, and it should^ have been qualified in such wise as that the jury would have understood that the city could not recover if the payment was made for work included in the contract upon a true construction thereof, if such payment were made upon an honest belief that a true construction of the contract did not require the furnishing of this labor and material.

The defendant requested the court to charge:

"If you find that defendant did the work and furnished the material mentioned in the petition, the value of which is stated therein to be $1,903.44, and that said work and labor and material was not included in the written contract dated March 24th, 1897, then your verdict will be for the defendant there being no evidence in this case of any fraud or deceit used by defendant to induce the payment of $1,903.44, and the payment having been made after officers of the city who had supervision and direction of the work or had opportunity to examine and inspect the work which had been done, and ascertain what work had been done and the value of the same.”

This request was refused, and it is claimed that there was error'in such refusal. We think that the court’s attention having been called by the request just hereinbefore quoted to the matter of the misconstruction of the contract, he should have either given such request or said something more than was said as to the voluntary payment claimed to have been made by the city, and that the charge as given was calculated to mislead the jury on this defense. The evidence strongly tended to show that the officers of the city not only had full opportunity to know what had been done by the defendant but actually knew what it had done, and that if -any mistake was made in making this payment which seems from the evidence to be very probable, such mistake was one of law and not of fact, and if such payment were made by mistake of law, this plaintiff was not entitled to recover in the action.

See Mays v. City of Cincinnati, 1 O. S., 269, in the opinion of which case, at page 275, the court referring with approval to the case of Brisbane v. Dacres, 5 Taunt., 143, say in that case:

„'1 ‘ The court refused to allow a recovery and laid down the principle broadly, that if a person with knowledge of the facts, but under a mistake as to the law, pay over to another, claiming it as a right, money which he has not been compelled to pay, he can not, upon discovering what his legal right was, recover it back, there being nothing against conscience in the other party’s retaining it.”

The same principle is laid down in the case of the City of Marietta v. Williamson Slocum, 6 O. S., 471.

In the case of Railway Compamy v. Iron Company, 46 O. S., at page- 44, the third paragraph of the syllabus reads:

“The rule that a payment voluntarily made under a mistake of law, but with full knowledge of the facts, can not be recovered back, rests upon general principles of public convenience and applies to a corporation as well as to a natural person. ’ ’

In the ease of Cincinnati v. Gas Light & Cohe Co., 53 O. S., 279, the third paragraph of the syllabus reads:

“A payment made by reason of a wrong construction of the terms of a contract, is not made under a mistake of fact, but under a mistake of law, and if voluntarily,' can not be recovered back.”

In the case of Printing Co. v. State, 68 O. S., 362, it is held that this principle applies to counties as well as to corporations and natural persons, and it is there said, that prior to the enactment of the present Section 1277 of the Revised Statutes a prosecuting attorney could not recover back money of the county paid upon an illegaL claim. That statute, which was passed on the 25th of April, 1898, provides in express terms that the prosecuting attorney may maintain such an action and recover back money volutarily paid by the county upon an illegal claim. There is no such provision authorizing a municipal corporation or any officer of such municipal corporation to maintain such an action. That being the case, the rule as to voluntary payments applies to a municipality the same as to a natural person, and the -court should have charged in such terms that the jury would have understood it, that if when the plaintiff made the payment to the defendant it had knowledge' of the facts upon which the defendant’s claim was founded, it was not entitled to recover back, notwithstanding such payment may have been made under a mistake of the law, and for failing so to charge and for the misleading character of thé charge on this proposition, as herein pointed out, the judgment of the court below is reversed and the cause remanded.


source: Caselaw Access Project

author: Marvin, J.; Winch, J., and Henry, J.,

license: Public Domain

text:
    RIGHT TO JURY TRIAL CLAIMED TOO LATE.
    Circuit Court of Cuyahoga County.
    George F. King v. George M. Potter et al, two cases.
    Decided, December 28, 1908.
    In a case at law but assumed by the parties to be in equity, where, on motion of the plaintiff, the case is referred to a special master commissioner to take evidence and submit it with his conclusions on the law and facts involved, which he does, and the plaintiff excepts to his report, whereupon the case is heard by the court upon the report and exceptions thereto and judgment rendered for the de- . fendant, to which the plaintiff excepts, after judgment so entered it is too late for the plaintiff to claim his right to a jury trial.
    W. D. Meals, for plaintiff in error.

      II. A. Auer, contra.
   Marvin, J.; Winch, J., and Henry, J.,

concur.

These two proceedings grew out of a single case in the court of common pleas and the parties stand to each other in the same relation as they stood in the court below.

King sued Potter for commissions which he claimed to be due to him on the sale of certain goods. It is said by plaintiff in error that the case was one at law. Without determining whether or not this is so, we consider it upon the theory that the claim is right and that the parties were entitled -to a jury trial; but it seems to have been assumed by both parties that it was a suit in equity, and on motion of the plaintiff the ease was ¡referred to a special master commissioner “to take the testimony in [writing and such documentary and other evidence as may be submitted to him, and report the same to the court together with his' conclusions on the law and facts involved in the issues; and said master commissioner is hereby authorized to summon and enforce the attendnce of’witnesses and grant adjournments; that the testimony may be taken down in shorthand and afterwards reduced to writing and after the same is reduced to writing the witnesses shall severally be required to subscribe their respective testimonies.”’

Under this order the case was referred to Hon. H. J. Caldwell, who proceeded to act under it and take the evidence and report the same, together with his conclusions on the law and the facts involved in the issues. This report having been filed, the plaintiff filed exceptions thereto. The case was heard upon the report and the exceptions by the court, and the defendant recovered of the plaintiff a sum of more than $1,800. An exception was taken to the action of the court in confirming the report and entering the judgment.

It is first urged that there was error on the part of the court in referring the case, because it was a case triable to a jury. We think this is sufficiently answered by Section 5204 of the Revised Statutes, which reads:

“In actions arising on a contract the trial by jury may be waived by the parties, and in other actions, with the assent of the court, in the following manner.
“1. By the consent of the party appearing, when the other party fails to appear at the trial, by himself or attorney.
“2. By written consent, in person, or by attorney, filed with the clerk.
“3. By oral consent in open court, entered on the journal.”

Under this section it has been held that there where no objection is made to a trial by the court until after the issues are found it is too late to insist that the case should have been tried to a jury, nor can the party against whom the issues were found object to a judgment in accordance with such finding.

In Bonowitz v. Bonowiiz, 50 O. S., 373, this language is used in the syllabus:

“1. A party may waive ’his right to a jury trial by acts as well as by words.
‘12. And where in a case of which the court of common pleas having jurisdiction of the parties may also, by consent acquire jurisdiction to try the cause without a jury, the record shows that the parties appeared, and neither demanded nor waived a jury, but without objection submitted the cause to the court upon the pleadings, evidence and argument of counsel, it is not error for the court to proceed to final judgment in the case. .
“3. An objection by the defeated party, first made after such submission and judgment, that his cause was not tried to a jury, comes too late.”

It follows from this that the action of the plaintiff himself moving that the case be referred estops him from now complaining that there was no jury trial.

Under the Sections 5130 and 5131, Revised Statutes, cases which may be tried by the court may be referred by the court, so that the parties so having consented that a jury be waived, thereby consented that the ease be tried by the court, it therefore follows that the court was authorized to try this case in any lawful wa.y. It was lawful to refer the matter and have the evidence brought into court by the referee and it was clearly lawful for the court to learn from the referee by report or otherwise, as to what was proved by this evidence and what his judgment was as to the law governing the case.

The court was not bound to accept the judgment of the referee, either as to the facts or as to the law. The parties had a right to be heard upon it in court. They were heard, the plaintiff having excepted to both the findings of fact and the conclusions of law; and having been so heard the judgment rendered was the judgment of the court, in a case in which the parties had consented that a jury be waived. Upon that hearing the court gave its judgment for the defendant. We think it is now too late for the plaintiff to complain of this judgment or of any action of the court in relation therto, and it follows that the judgment of the court of common pleas is affirmed.


text:
    REMOVAL OF ATTACHMENTS TO RAILROAD CAR..
    Circuit Court of Cuyahoga County.
    Sam Pisko v. State of Ohio.
    Decided, December, 1908.
    1. The act of May 9, 1908 (99 Ohio Laws, 464), which provides for the punishment of those who, by removing certain enumerated articles from railway equipment, endanger human life does not, by implication, repeal Section" 6861, Revised Statutes, which make it unlawful to do the things therein enumerated without reference to the endangering of human life thereby.
    2. An indictment which alleges that the accused unlawfully, wilfully and without proper authority removed and displaced certain attachments to a railroad car, to-wit, three triple valves, describes an offense within the purview of Section 6861, Revised Statutes.

      William B. Woods, for plaintiff in error.

      William G. Gei&r, contra.
   Marvin, J.; Winch, J., and Henry, J.,

concur.

Pisko was indicted, tried, found guilty and sentenced upon an indictment which charged that he unlawfully, willfully and without the proper authority did then and there remove and displace certain attachments to a railroad car, to-wit, three triple valves of the'value of three dollars each, which said railroad car and attachments were then and there employed and used in connection with the operation of a certain railroad of the Baltimore & Ohio Railroad Company, a corporation, and which said railroad car was then and there constructed and in operation in said county by said corporation, as aforesaid.

To this indictment a demurrer was filed and overruled, and the error complained of is the overruling of this demurrer. It is urged that if the indictment is under Section 6861 that the statute is not now in force, but was repealed by implication by the enactment of the statute found in 99 O. L., 464.

Section 6861 reads:

That it shall be unlawful for any person or persons without proper authority, to place any obstruction upon any railroad, or any street railway,, or any cable railway in this state, or displace, injure, or destroy anything appertaining thereto, or interfere with, remove, displace or disarrange any rail, cross-tie, switch, side-track, locomotive, car or train of cars or other property appertaining to any such railroad, street railway or cable railway, or interfere with, remove, displace or disarrange any flag, lamp or other signal attached, to or employed upon any railroad, street railway or cable railway, or upon any railroad car or train of ears, or upon any street railway ear or cable railway car, locomotive switch or other property appertaining to any such railroad, street railway or cable railway or remove from, disarrange or destroy any lock fastening, coupling or attachment on any track, car switch, stand, tool house, depot, or other property of any such railroad, street railway or cable railway. Any person violating any of the provisions of this section, shall, upon conviction thereof, be fined not more than five hundred nor less than twenty-five dollars, and imprisonment in the penitentiary not more than ten years or in the county jail not less than thirty days.”

The statute passed May 9, 1908 (99 O. L., 484),-which is claimed repeals the former statute, reads:

“That whoever without authority unlawfully removes from any railway track over which locomotives or cars are operated or from any locomotives, motor, or ears the'bond wires, nuts, bolts, angle bars, spikes, attachments, fastenings, switch stands, locks, feed wires, trolley wires, or other appurtenances, or any part or attachment thereof, or any bonds, nuts, bolts, wires, fastenings, journal braces, journal packing or parts thereto attached or belonging in which are necessary in the use or operation of said railway tracks, locomotives, motors or cars, and the removal of which may endanger life, or whoever buys, receives, or unlawfully has in his possession any of the aforesaid articles, shall upon conviction thereof be imprisoned in the penitentiary not more than five years or less than one year, or not more than six months in the county jail or workhouse at the discretion of the court, which is hereby authorized to hear testimony in mitigation or aggravation of sentence.”

It will be noticed that the statute last quoted provides only for the punishment of those who by removing the articles enumerated endanger human life, while Section 6861 makes it unlawful to do the things therein enumerated, without any reference to whether the doing of those things endanger human life or not, so that if the statute found in 99 O. L., 464, repeals the former statute by implication there would be left no penalty for doing those various things, except when the doing of them endangers human life. It is perfectly clear that the statute last named was not intended to take the place of Section 6861, and, therefore, does not repeal the former act by implication.

But it is said that the indictment is bad under Section 6861. That statute, as is said in brief for the plaintiff in error, punishes first, him who places any obstruction upon any railroad or interferes with, removes, displaces, or disarranges any rail, cross-tie, switch, side-track, locomotive, car or train of cars, or other property appertaining to any such railroad; second, it punishes him who interferes with, removes, displaces or disarranges any flag, lamp or other signal, and third, it punishes him who removes from, disarranges, or destroys any lock, fastening, 'coupling or attachment on any track, car, switch, stand, tool house, depot, or other property of any such railroad.

Of course it is perfectly clear that the offense charged here does not come within the second class named in the statute.

It is said that it does not come with the third class because there is no averment that the property interfered with was the property of any railroad, street railroad or cable railroad company. Conceding that this is true as to the third offense as named in the first clause of the section is clearly charged in this indictment. Not a necessary allegation is- omitted. The language of the indictment is that the defendant “did remove and displace certain attachments to a railroad car, to-wit, three triple valves.” The language of the statute is that “it shall be unlawful for any person, without proper authority, to interfere with, remove, displace, or disarrange any ear or other property appertaining to any such railroad.”

If these triple valves were attachments on a railroad car, then they appertained to such described ear, and the fact that the word “appertaining” is used in describing the last of the three, offenses named in the statute in nowise does away with the fact that whatever attachment there is to a railway car “appertains” to such ear.

We reach the. conclusion, therefore, that the demurrer was property overruled, and the judgment is affirmed.


text:
    CORPORATE STOCK SUBSCRIBED FOR. BUT NOT TAKEN.
    Circuit Court of Cuyahoga County.
    Frank H. Ginn, Assignee, v. The Cleveland Sanitarium Company.
    Decided, January 11, 1909.
    1. A subscriber for stock in a corporation can not be relieved of paying therefor simply by his declaration that he will not take the stock, even if made before any debts have been contracted by the corporation; 'but if all the stockholders consent to a cancellation of his subscription before any debts are contracted he is relieved therefrom.
    2. The consent of all the other stockholders need not be express, if their acquiescence continues unimpeached, with full knowledge of the facts.

      Blandin, Bice & Ginn, for plaintiff in error.

      E. J. Foster, Scott Parks, G. W. Dille and - White, contra.
   Marvin, J.; Winch, J., and Henry, J.,

concur.

The plaintiff here is the assignee, under the^ statutes of Ohio, for the benefit of the creditors of the Euclid Avenue Trust & Savings Company, a corporation. The suit is brought against the Cleveland Sanitarium Company, a corporation, and certain natural persons. Among the defendants is John W. Walton, and the only issue tried in this court is an issue between the plaintiff and said Walton,, and that issue is upon the question of whether Walton is liable upon an unpaid subscription for stock of the sanitarium company. This company was incorporated on the 11th day of December, 1900. Walton was not one of the incorporators. Shortly after the incorporation books for subscriptions to the capital stock were opened and Walton subscribed for five shares of the stock. He was elected a director and then by the vote of the directors he was elected president of the corporation. Shortly after that and before any certificates of stock had been issued to anybody and before any debts had been incurred, Mr. Walton, at a meeting of the stockholders, of which all the stockholders had notice, but which was attended by only a part of them, stated in the open meeting that he had been induced to subscribe because of representations made to him by the promoter, which he claimed were not being carried out, and he stated he would refuse to take out any stock. However, after some conversation among the stockholders present at this meeting, he agreed to take one share and one share-only of such stock. Several of the stockholders present affirmatively stated that this action of Walton’s was acceptable to them, and no stockholder present made any objection in any wise to the position taken by Mr. Walton. Thereafter, Mr. Walton, so far as he was able to do, notified each stockholder whom he supposed might have been influenced to subscribe by the fact that he had subscribed for five shares, then that he withdrew such subscription and was to take out but one share. This fact seems to have been known early to all of the stockholders. One share of stock was issued to Mr. Walton, for which he paid, and on which he has since paid 100 £er cent. as his statutory liability. At a meeting of the stockholders later Mr. Walton appeared and voted one share and one share only of the stock. The claim made here by the plaintiff is that Walton having originally subscribed for five shares of stock and having paid for but one is still' liable for the remaining four shares, both upon his subscription and upon his statutory liability as a stockholder.

We recognize the law to be as claimed by the plaintiff that no subscriber for the stock of a corporation can be relieved of his liability by simply declaring that he will not take the stock, even though such declaration is made before any indebtedness is incurred by the corporation, but we understand the law further to be that so long as there are no debts of the corporation, the stockholders among themselves may, if all agree to it, release one who has subscribed for stock. This is necessarily so, because all the stockholders may agree among themselves that they will abandon the corporation and none of them pay anything. And the question remaining is only whether Walton by unanimous consent of the stockholders was released from his subscription. It is said that since the issuing of certificates of stock is not necessary in order to constitute one a stockholder of a corporation, the fact that a certificate for but one share was issued to Mr; Walton does not release him from his obligation as a subscriber to the stock or as a stockholder, and this- is true. But the fact that the certificate for one share was issued to him, as shown by the records of the corporation, and that he thereafter appeared at a stockholder’s meeting and voted but one share, without any protest on the part of anybody, or claim that he was-a stockholder in a larger amount, we think has a bearing upon the question of whether he was released by the unanimous consent of the stockholders.

In Section 169 of Cook on Corporations, it is said:

“A subscriber for stock in a corporation can not obtain a cancellation of his subscription except by the unanimous consent of the other subscribers. By unanimous consent, however, of the stockholders, a subscription may be canceled and a subsequent creditor of the corporation can not complain. The consent of all other stockholders need not be express, if the means of notice are sufficient so as to raise a clear presumption of knowledge and acquiescence and if the arrangement is left unimpeached by any one for many years no objection can be made.”

In the case before us there was an acquiescence by all of the stockholders. There has never been any complaint by any of them nor was any complaint made by anybody until after the bringing of this action.

At the beginning of this action Walton was not made a party, but was brought, in some time after the action was begun, and. the claim against him is for the benefit of creditors at the time that Walton announced the withdrawal of his subscription, so that the creditors for whose benefit a recovery is-sought here1 are creditors who became such after Walton’s withdrawal.

We think the fair conclusion to be drawn from the evidence here is that Walton announced his withdrawal of the subscription for the four shares of stock for which he has never paid; that it was acquiesced in by all of those interested in the corporation at the time, to-wit, all of the other stockholders or subscribers for stock, and that therefore the plaintiff is not entitled to a recovery against Walton, and judgment will be entered in his favor.


text:
    ABANDONMENT OF CHILD NOT SHOWN BY FAILURE TO PAY FOR. ITS SUPPORT.
    Circuit Court of Cuyahoga County.
    The Cleveland Christian Orphanage v. Charles L. Barcus.
    Decided, January 11, 1909.
    A father placed his minor child in an orphanage association, agreeing to pay a stipulated sum weekly for its support. He also agreed that if lie failed to pay the weekly charge for three consecutive months after the same became due he would relinquish all his rights, interest and control of his child and vest the same in the association, so that it should have all the rights to and authority over the child which he had by reason of being its father. The association cared for and supported the child for over a year, until there was due it quite a sum which the father neglected to pay. He then began proceedings in habeas corpus to recover possession of his child, and the association answered that it was entitled to the child under the terms of the agreement. Held: The agreement was unilateral, not binding the association to care for and support the child and so unenforceable by it, and further, the fact that the father was in debt for the care of his child did not show, that he had abandoned it.

      Aide'll cfi Hopple, for plaintiff in error.

      Kerruish c6 Kerrmsh, contra.
   Marvin, J.; Winch, J., and Henry, J.,

concur.

Barcus is the father of Theodrick M. Barcus, an infant about 5 years of age; the plaintiff in error is a corporation. On the 18th day of February, 1907, he (Barcus) having lost his wife and being unable to care for said child in his own home, “voluntarily and of his own free will placed said child, Theodrick M. Barcus, in the Cleveland Christian Orphanage of the Benevolent Association of the Christian Church for the purpose of having said child cared for, supported and maintained by said orphanage. ” That for the purpose of securing the services in earing for, supporting and maintaining said child, said Charles L. Barcus voluntarily and of his own free will signed, executed and delivered to said orphanage thé following agreement:

“Know all men by there presents; that I, Charles L. Barcus, of the county of Cuyahoga, and state of Ohio, being the father of a certain child named Theodrick M. Barcus, about 3% years old, have placed the said child in the care and custody of the Cleveland Christian Orphanage of the Benevolent Association oE the Christian Church, city of St. Louis, Mo., to be eared-for, supported and maintained, and in consideration of said care, support and maintenance of said child, under the rules and regulations of said association, I hereby agree to pay said association $1.50 per week, weekly in advance. And should I fail to pay the said weekly charge for three consecutive months after the same is due and payable, I hereby agree to relinquish and in that event, do hereby relinquish all my rights, interest and control of the said child, and vest the same in the said association, so that the said association shall, in that event, have all the said rights to and authority over the said child that I now have, by reason of being the father of said child as aforesaid.
“Witness my hand and seal, this the 18th day of Feb., 1907. “Witnesses, Mrs. C. B. Lamb. Charles L. Barcus. (Signed.) ”

Said Charles L. Barcus paid nothing to said orphanage nor anything toward the amount he -agreed to pay to cover any time since April 4th, 1907.

Said orphanage cared for, supported and maintained said child continuously from February 18, 1908, until the said child was taken from it, under a writ of habeas corpus issued in the action,' out of which this proceeding in error arises, so that by the terms of said contract said Charles L. Barcus is indebted to said orphanage in the sum of $107.

Said orphanage is a proper custodian o£ said child, and the home maintained by it in which said child was kept and cared for Ijy it is a proper and suitable place for the care and support: of said child, and no fault is found in that regard with said orphanage.

While said child was an inmate of the home maintained by said orphanage, to-wit, on the 10th day of August, 1908, the plaintiff commenced an action in the court of common pleas in habeas corpus, to secure the custody of said child as against said orphanage. Upon trial had in that case, the prayer of the plaintiff’s petition was granted and the custody of the child taken from the orphanage and given to the father.

To reverse this ■ judgment the present action is prosecuted.

The facts as hereinbefore stated were agreed upon between the parties to this action, as appears by the bill of exceptions filed in this court.

Upon these facts was the court right in its judgment?

Whether a parent may, in Ohio, by contract, other than such contract as is provided by statute in the case of apprentices, transfer all right to the custody and control of his minor child, need not here be decided, because the writing entered into between the father and the orphanage in this ease was not a contract which could thus transfer the custody and control of the child, whether a contract thus transferring the custody and' control of the child could be made or not, and this is so for want of mutuality in the contract. It will be noticed that the orphanage made no promise .to do anything on its part. The promise in the writing is wholly on the part of the father, and except to the extent that it has been executed, it would not bind either of the parties. Under the terms of this writing the orphanage was at liberty at any time to refuse to further care for and support this child.

If the result of this litigation should be a reversal of the judgment of the court of common pleas, and if this court, or that court should enter judgment in favor of the orphanage as to the custody of the child, the orphanage might immediately refuse to care for and maintain the child and still violate no provision of the writing entered into between the parties. If the custody and maintenance of the child were left in the orphanage the father would be under obligation to pay $1.50 per week provided for in the writing, so long as the orphanage should continue to care for the child, and this might continue up to the date when the child should reach majority. On the part of the father, the obligations entered into constitute but a naked promise on his part, to be enforced only so far as the orphanage has executed on its part that for which the father promised to pay. It would seem then, that there could be no doubt that under this writing the orphanage is not entitled to the custody of the child as against the father. - '

It may, however, be urged that since a parent may forfeit his right to the custody of his child by abandonment that the facts here found such abandonment. This position is not sound. The 'father has shown by this writing that he made provision for the maintenance of his child, and the child during all of the time was properly provided for. True, the father failed to pay what he had agreed to pay for such maintenance, and he is in the situation so far as an abandonment is concerned that any parent would be in who makes such arrangements for the board and support of his minor child at a fixed compensation and fails to pay, in short, runs into debt for the support of his child. The facts found in this case do not warrant the conclusion that the child has been abandoned by the father.

There is no evidence in this case as to the fitness of the father to have the custody of his child, but until the contrary is shown, the presumption is that the father is a suitable person to have the care and custody of his child, and surely this is not overcome by the showing that he has allowed himself to fall into debt to the amount of $107 for the support of the child. The situation, then, is this: that the father seeks to take the care and maintenance of his child upon himself, as by the laws of the state and the laws of nature it is his duty to do. So far as appears, he is an entirely suitable person to have such custody, except as this is rebutted by the fact that he has failed for some sixteen months to pay what he agreed to pay for the child’s support. The orphanage is under no obligation by contract or otherwise to care for and support this child for a day or an hour, although it furnishes an entirely suitable home for the child. Of course, no claim could be made here, or would be made here, that this writing is to be treated as a pledge of the child to the orphanage, as security for the payment of the debt which the father incurred for its support, as such claim would be against all our notions of the proper way to treat children.

The result is that we find the writing does not entitle the orphanage to hold the child as against the father, nor has there been any such abandonment of the child by the father as would entitle the orphanage, or anybody else, to hold the child as against the father.

Suppose that immediately before the commencement of the action in habeas corpus the orphanage had. expelled this child from its home and it had been immediately taken into the home of some family prepared to give it a suitable home and maintenance and surround it with proper influences and the father had begun habeas corpus proceedings against such family. So far as abandonment is a defense here against such father,' abandonment would be available as a defense against the father in the ease supposed, and yet it is inconceivable that any court, in the case supposed, would hold against the father without a showing other than the showing made here that he had failed for sixteen months to pay for the child’s support at the place where he had arranged that the child should be supported.

The result is that the conclusion is reached by a majority in this court that the judgment of the court of common pleas ought to be, and such judgment is affirmed.


author: Marvin, J.; Winch, J., and ITenry, J.,

text:
    CONSTRUCTION OF CONTRACT AS TO QUALITY OF RAILS.
    Circuit Court of Cuyahoga County.
    Henry R. Fishel and Joseph D. Marks, a Co-Partnership Doing Business as Fishel & Marks, v. J. A. C. Goldstein.
    Decided, January 11, 1909.
    A provision in a contract for tlie sale of rails that they shall be “same as was inspected” means that all rails tendered or delivered shall be equally as good as those which had been inspected.
    W. G. Ong, for plaintiff in error.

      Klein :<& Harris, contra.
   Marvin, J.; Winch, J., and ITenry, J.,

concur.

The relation of the parties to each other is the reverse in this court of the relation they sustained -to each other in the court below. The .terms plaintiff and defendants as used in this opinion will refer to the parties as they were below.

The plaintiff brought suit for damages for an alleged violation of a contract. The result was a verdict and judgment in favor of the plaintiff, and this proceeding is brought foi; the purpose of reversing said judgment on account of errors which it is alleged were committed on the trial.

The contract which is the foundation of the suit is in writing and was entered into originally between the defendants and one B. C. Scott, and such rights as the plaintiff has, resulted from a transfer by Scott of his interest in the contract to the plaintiff. The contract is evidenced by two paper writings which read as follows:

“Cleveland, 0., Apr. 10, ’06.
‘ ‘ Option.
“It is mutually agreed by ITenry R. Fishel and Jos. D. Marks, a co-partnership doing business under the name of Fishel & Marks, and B. C. Scott, both of the city of Cleveland, Ohio, witnesseth:
“For a valuable consideration we the said Fishel & Marks hereinafter called the seller do hereby give the said B. C. Scott, hereinafter known as the buyer an option until April 12th, ’06 inclusive, for 1250 tons of 56 -and 60 T. relaying rails, assortment to be half and half of each. Same as was inspected by B. O. Scott, at the seller’s yard 1940 and 50 Wilson avenue, in the said city. Price to be twenty-two ($22.40) dollars and 40e per gross ton, also angle bars enough to fit the above mentioned lot of rails. If angle bars are odd sizes and do not fit the above mentioned rails, the seller hereby agrees to repunch angle bars and guarantees the fit of all angle bars to the above mentioned rails. Any rails left over shall be returned to the above mentioned concern. Price of angle bars to be twenty-five dollars ($25) per gross ton f.o.b. ears to Cleveland, O., same to be shipped at once. Draft to be attached to B. L. Inspector of buyer to inspect rails wherever rails are, at seller’s expense.
“Signed in duplicate'this 10th day of April, 1906.
“Fishel & Marks, per PI. R. Fishel,
“B. C. Scott.
‘1 Signed in the presence of Benson Mcllrath. ’ ’
“Fishel & Marks,
‘ ‘ City.
“Gentlemen: I hereby accept your option given me on 1250 tons of 56 and 60 lbs relaying rails also angle bars-to fit same.
“Kindly confirm this by return mail, and oblige,
1 ‘ Respectfully yours,
“B. C. Scott.”

The contract was never carried out and no property was ever delivered under it.

The plaintiff says that the reason for not carrying the contract out was the default of the defendants, which the defendants deny and allege that the fault was wholly with the plaintiff. An examination of the record in the case leads us to the conclusion that there was some confusion as to the rights of the parties both growing out of the manner in which the case was tried.' As we understand this contract, certain rails of the description named in the contract had already been inspected by Scott. The defendants were bound already to furnish to the plaintiff rails which would answer the description by being of the proper weight and by being T relaying rails, and all rails of the quality answering this description which had been inspected by Scott the plaintiff was bound to take, and the business of the inspector who was t'o be furnished under the terms of the contract by the plaintiff and paid by the defendants, was to determine only whether the rails offered by the defendants were T relaying rails of the proper weights and were either the rails which Scott had inspected or T relaying rails of the same weight' and of equally, good quality. The plaintiff insisted on an inspection of rails apparently not for the purpose of determining whether they were such as Scott had inspected, but whether they were such as were satisfactory to him as T relaying rails.

The evidence of Mr. George B. Schultz, who was the first inspector whom the plaintiff sent to inspect the rails, shows that when he went to the defendants’ yards to inspect rails Mr. Scott went with him and pointed out a pile of rails, and said they were the rails which hé had inspected. The defendants claim that they being the rails which Scott had inspected were rails which the plaintiff must accept in fulfillment of the contract in so far as they would come under the description of T relaying rails of the right weight. They did not claim that broken or twisted rails would come under the description, but aside from that, these rails must be accepted because they were T relaying rails which Scott had inspected, and which by the terms of the contract were the kind of rails purchased.

Without stopping to quote extensively from 'the charge as given, it is sufficient to say that the court left to the jury the question of the quality of rails which were to be furnished under the contract, without instructing them that to the extent that the rails offered were those which Scott had inspected, or were of as good quality as those which Scott had inspected, they were rails which the plaintiff was bound to take, and then we think the charge in this regard was misleading. A quotation from the charge will show in what wise we think the charge was misleading; speaking of the words used in the contract “T relaying rails ’ ’ the court says:

“The plaintiff claims that that term meant the relaying rails, uniform length, good ends, uniform and standard borings, straight and suitable for relaying or side-track purposes. The defendants contend that, as used in the contract, the term meant the relaying rails used and suitable and capable of being used for relaying purposes.”

Again the court say:

“The plaintiff does not claim that he was ready and willing to receive and accept 56 and 60 ft. tee relaying rails that were merely suitable or capable of being used for relaying purposes, therefore, if you find that the term, ‘tee relaying rails’ meant 56 and 60 ft. tee relaying rails, capable of being used or suitable for relaying purposes, subject to the buyer’s inspection, a provision of the contract I will hereafter more particularly call your attention to, then your ’verdict will be for the defendant. If you find that this term, as used in the contract, was used to describe tee relaying rails of the character and grade as claimed by the plaintiff then you will consider whether the plaintiff was ready and willing to perform his part of this contract.”

The court nowhere in the charge says (and this the defendants were entitled to have said, or in substance were entitled to have said) : “If you find that the defendants were ready and willing and offered to deliver to the plaintiff the proper amount of 56 and 60 ft. T relaying rails of the quality such- as Mr. Scott inspected, then your verdict must be for the defendants, without reference to whether the rails came up to another and higher standard or not.”

The standard for determining whether the rails offered were such as the defendants contracted to furnish was fixed by the rails which would be properly-described as 56 and 60 ft. T relaying rails and which were equal to those inspected by Scott.

Nowhere in the charge is it distinctly pointed out that the rails inspected by Scott fixed the standard which the defendants were to furnish, and because of this failure thus to distinctly point out to the jury the standard which was to govern in determining the quality of rails to be furnished we think the charge was misleading, and that the jury under the charge might well have reached a conclusion that the rails must be of a better quality than those inspected by Scott, and because of this and of different rulings on the matter of evidence that were based upon any theory other than that the standard was fixed by the character of the rails which were inspected by Scott the judgment is reversed and the cause remanded for further proceedings.


text:
    INJURY FROM AN EXPLOSION IN A TORPEDO FACTORY.
    Circuit Court of Cuyahoga County.
    Martin J. Mayer, as Next Friend of Mame S. Mayer, v. Isaac Brudno.

    Decided, January 25, 1909.
    A torpedo factory exploded, blowing out a window in a neighboring building and injuring the plaintiff. In an action against the lessor of the building in which the torpedoes were being manufactured, Heidi: It was for the jury to say whether the business of manufacturing torpedoes was dangerous and such that an explosion might reasonably be anticipated, and whether the defendant had such 'knowledge of the nature of the business carried on that reasonable prudence on his part would have anticipated that an explosion might occur.

      Walter D. Meals, for plaintiff in error.

      Ezra Brudno, contra.

       Affirmed without opinion, Brud.no v. Mayer, 82 Ohio State, 436.

   Marvin, J.; Winch, J., and Henry, J.,

concur.

The parties here stand related to each other as they did in the court below. The suit was brought to recover damages for personal injuries said to have been received by Mame S. Mayer, an infant, by reason of a broken piece of glass striking and cutting into her eye, which glass was a part of a window in the house in which she was, and which was caused to be broken by an explosion occurring in the building owned by the defendant.

This injury was received by Marne on the 2d of May, 1903.

That the injury was received is clearly shown and not denied; that the cause of the injury was the explosion of something in the building named is clearly shown; that the property was at the time owned by the defendant is clearly shown, and that it was under lease at the time to a firm, the name of which was the Thor Manufacturing Company, and that the business of such firm was the manufacture of various devices, used largely by children on holiday occasions, and especially on the Fourth of July, is also shown; that a part of these devices are what is known as torpedoes, which were made for the purpose of and which will explode, when being brought with force against stone or other like hard substance, and the ingredients of which they were mixed for the purpose of producing a compound which would thus explode are likewise shown in the evidence, and are not shown to be explosive except when combined in such wise as to produce these torpedoes.

On the day the explosion occurred which caused the plaintiff’s injury, there was a large quantity of these torpedoes stored in the building, and in some manner there was an explosion which destroyed the building and injured many buildings for a considerable distance from the one in which the explosion occurred. The lessees of this building were in the occupancy of it, for the same purpose, for a considerable time before it was purchased by the defendant, and an agreement was made between the lessees and the defendant that the lessees might continue in such occupancy up to and after the Fourth of July. At the close of the evidence on the part of the plaintiff the court directed the jury to return a verdict for the defendant, and this is complained of. It is urged'that the evidence does not show that the defendant could know that such explosive matter was kept in quantities which could produce a great explosion, nor indeed that a great explosion would result from keeping it in any quantities, even though there should be an accident which would cause one or more of the torpedoes to explode. We think that the evidence of Martin J. Mayer tends to show that the defendant knew what was being manufactured in this- building. Testimony of John Trottner shows that Mr. Brudno was in the factory a considerable number of times while the manufacture of these torpedoes was going on; that he was shown about the premises by Mr. Cole, one of the lessees, which tends, we think, to show that he saw and appreciated what the manufactured product was. He says that he saw Mr. Cole, in Brudno’s presence, explode some of these torpedoes. Prom this evidence the jury might come to the conclusion that Brudno was aware that torpedoes were being manufactured in this building, and that these torpedoes were explosive; that they were small and a single torpedo produced but little sound, though it was sufficient to- be heard for quite a distance and that the disturbance of the atmosphere about it would not be great, though it would amount to something, so that it would seem that an inference might be drawn from the fact that if a torpedo of the size of that ordinary filber would produce the sound that it is shown this did produce (which sound, of course, is produced by the displacement of the air about it), that the explosion of a great quantity of them would produce a proportionately greater disturbance, and that since each was explosive the explosion of one would be likely to produce the explosion of another coming in contact with it, and so when a great quantity of them would produce a proportionately greater disturbance, and that since each was explosive, the explosion of one would be likely to produce the explosion of another coming in contact with it, and so when a great quantity of them were placed in contact with each other, in a box, and then a great number of these boxes piled together, that a sudden jar or the bringing of a hard substance in contact' with one or more of these torpedoes might produce a dangerous explosion. That being so, we think that the. court should have submitted to the jury the question whether the facts which were shown to be within the knowledge of the defendant, were such as to charge him with knowledge of the dangerous character of the business carried on in his building. We think the reasoning in Glycerine Co. v. Woolen Co., 60 O. S., 560, supports this view, but it is also supported by Tiffin v. McCormick, 34 O. S., 638; Gas Company v. Andrews, 50 O. S., 695, and Defiance Water Company v. Olinger, 54 O. S., 532.

As said in the case of Gylcerine Company v. Woolen Company, supra, the leading case on the question of how far the owner of property is responsible for injuries resulting to others from the use of his property in a legitimate way, but in a way which is dangerous, is the ease of Fletcher v. Rylands, L. R., 1 Exch., 265. That was a ease where the defendant had constructed the reservoir for holding a large amount of water. Under the reservoir there had been mining, so that tbere were excavations in the earth, but these had long been covered, though not filled. The fact of their existence was unknown to the defendant, and unknown, apparently, to everybody who had anything to do with the premises. On a parcel of land adjoining the land on which the reservoir was constructed there had also been mining. The plaintiff had a parcel of land not adjoining the premises on which the reservoir was situated, but adjoining the parcel of land which itself joined the reservoir tract. Mining was carried on by the plaintiff on his premises, and under lease from the owner of the intervening premises, who also conducted mining, and the mining so carried on in the intervening premises reached up to the excavations which had before that existed in this intervening tract. The reservoir being party filled with water gave way, because of the excavations under it, of which the owner had no knowledge; the result was the plaintiff’s mine was flooded by the water passing from this reservoir through the excavations which had been made in mining between the reservoir property and the plaintiff’s property, and the court held that the defendant was liable, and this was affirmed on appeal to the House of Lords.

It is not necessary, however, to go as far in the case before us in order to hold the defendant liable as in the Rylands case. We think if the case had been submitted to the jury the questions to be answered by the jury would have been, was the business carried on in these premises dangerous and such that a dangerous explosion might reasonably have been anticipated, and did the defendant have such knowledge of that, business as that a man of reasonable prudence would have recognized the liability of having such an explosion as the one which occurred?

We reach the conclusion, therefore, that the court erred in directing a verdict for the defendant; the cause should have been submitted to the jury with proper instructions. Judgment is therefore reversed and the cause remanded.


author: Marvin, J.; Winch, J., and Henry,-J.,

text:
    VARIANCE WHERE THE DEFENDANT WAS CHARGED WITH ARSON.
    Circuit Court of Cuyahoga County.
    Nathan Berman v. State of Ohio.

    Decided, January 25, 1909.

      Criminal Law — Arson—Immaterial Variance in Warning Owner of Burned, Building — Confession of Arson, When Admissible — Motion for New Trial — Bill of Exceptions Showing All the Evidence Necessary.

    1. In a trial for arson where the indictment charged the accused with burning the property of “B. Mirsky,” and the evidence showed that it was owned by "Harry Mirsky,” it is not error for the court to charge that if the jury found that the person named in the indictment as “B.'Mirsky” was the same person as the "Harry Mirsky” who owned the building, the variance would not be fatal.
    2. In order to authorize the introduction in evidence of an admission by the accused that he was guilty of arson, it is sufficient to show that the building he confessed burning was in fact burned at the time charged.
    3. In order that affidavits used on a motion for a new trial may be considered by a reviewing court, there must be a certificate of the trial judge that the affidavits in question were all the evidence intriduced on the hearing of the motion.

      W. G. Ong and D. M. Bader, for plaintiff in error.

      E. 8. Brudno, contra.

       Affirmed without opinion, Berman v. State, 81 Ohio State, 508.

   Marvin, J.; Winch, J., and Henry,-J.,

concur.

Berman was indicted and convicted of arson; the charge in the indictment was that he burned a building on the - day of December, 1906, which was the property of “B. Mirsky.”

One of the errors complained of in this proceeding is that the court refused to charge that if the property burned was the property of Harry Mirsky no conviction could be had. The evidence clearly showed that the property was owned by Harry Mirsky.' The court on this proposition charged that if the jury found that the person named in the indictment as “B. Mirsky” was the same person as the Harry Mirsky who owned the building," the variance would not be fatal.

Section 7215, Revised Statutes, reads:

“No indictment shall be deemed invalid nor shall the trial judgment or other proceeding be stayed, arrested, or in any manner affected by the omission of the words ‘with force and arms,’ or any words of similar import; nor for the omission of the words ‘as appear by the record,’ nor for omitting to state the time at which the offense was committed in any case in which time is not of the essence of the offense; nor for stating the time imperfectly; for want of a statement of the value or price of any matter or thing and the amount of damages or injury, in any case where the value or price or the amount of damages or injury, is not of the essence of the offense; nor for the want of an allegation of the time or place of any material fact, when the time and place have once been stated in the indictment; nor for the omission to allege that the grand jurors were impanelled, sworn or charged; nor for any surplusage or repugnant allegation, when there is sufficient matter alleged -to indicate the crime and person charged; nor for want of averment of any matter not necessary to be proved; nor for any other defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits.”

Before the enactment of this section of the statute, to-wit, May 6, 1869, the contention here made would have been sustained. See Price v. State, 19 Ohio, 423. To the same point is State v. Hill, 48 West Va., 132. To these authorities might be added many other outside of Ohio where no such statute is in force, but the rule is materially changed in this state by the section referred to.

In the case of Mulrooney v. State, 26 O. S., 326, the indictment charged that certain property in which a burglary was committed was the property of two persons, naming them. The evidence' showed that the property was owned by but one of these two people. It was held that this was not a variance because of our statute.

In the case of Ratekin v. State, 26 O. S., 420. the charge was that a crime had been committed at'the barn of a party named. The evidence showed that the building was erected and used as a place for the storing of tobacco. It was held that this was not a fatal variance.

In the ease of Mead v. State, 26 O. S., 505. the indictment charged that the prisoner murdered Elisha Davidson. The evidence showed that the person slain was Elijah B. Davison, and the court say that it was a question for the jury to determine whether the person actually slain was the person intended by the name used in the indictment. In that case the trial court erred in its finding and.in instructing the jury to the effect that by the name used in the indictment the person actually slain was the one intended, and for that reason the case was reversed, although the court in its opinion say that the trial court was probably right in holding that the person slain was the one intended to be named in the indictment, but say that should have been left to the jury.

In the case now under consideration it was left to the jury, and an examination of the record can leave no doubt that it was the intention of the indictment to name the real owner -of the building, who turned out to be not B. Mirsky but. Harry Mirsky.

There was no error on the part of the court in this regard.

It is complained further that the court erred in this regard, and that it was error on the part of the court in admitting testimony of the witness Oohen with respect to a conversation held between him and the prisoner after the fire, in which' the state claims that the prisoner admitted the commission of the crime. It is said that this should not have been admitted because it had not been shown by the state that the fire which consumed the building was of incendiary origin and that before a confession or admission of The prisoner may be used against him, it must first be shown that the crime had actually been committed by somebody. We think that counsel for plaintiff in error misconstrue the rule in this regard. Conceding the law .to be that the state can not convict or even that the state can not receive evidence of admissions made by the prisoner, tending to show-guilt on his part, unless it be first shown that the thing charged against him as a crime has actually taken place, still when it is shown that the building charged to have been burned by the prisoner at a given time, is shown to have been burned at that time, it is certainly admissible to show that the prisoner admitted that he did the burning., If this were not true, a dead body might be found with a bullet wound indicating that the cause of death was the shooting into the head of the deceased of a pistol bullet, and that immediately after such finding of the dead body a person should admit that he did the shooting, it would have to be held under the contention made, that it must have to be shown by other evidence first, before such admission could be received, that the dead person had actually been murdered. This is so manifestly a misconstruction of the rule as to show its absurdity.

Before the testimony of Cohen was received, it was clearly shown that the building which it was claimed the prisoner fired was actually burned at the time charged. The court was right in admitting the testimony of Cohen as to what the prisoner said to him about it.

At the close of the evidence on the part of the state, a motion was made by the prisoner to have a verdict or not guilty directed; this was overruled. It is urged that this motion should have been granted because of the failure of the state to make a case by its evidence against the prisoner.

The state had shown by Cohen, who testified in a very broken way, because, of his not understanding the English, language (and it is somewhat difficult to understand just what he does mean in a part of his testimony), that Berman in talking with him (Cohen) about the burning of this building on "Woodland avenue, which is the property that was burned, and the property meant in the indictment, that he (Berman) had benzine and put it around the stove. From the rest of his testimony, broken as it' was, it might reasonably be inferred at least that Berman- when describing how a store cciuld be burned, was telling how this store was burned.

Jessie Dorff testified that on the night of the fire, just before the fire broke out, she saw members of Berman’s family carry goods from the store. She saw them go in and out. Being asked on direct examination if she saw Berman, she said no, but upon cross-examination, she says she saw Berman at the store packing the goods, which the other members of the family were carrying out, but she did not see him carry any out. While the story of this witness» is, when considering all the circumstances of the case, not altogether probable in all its parts, yet if her testimony were believed, or if that part of it were believed in which she testified to seeing these goods being packed up by Berman and carried out of the store just before the fire by members of his family, it would be very strong in showing that in connection with the fact that the fire just afterward broke out, that Berman had something to do with that fire. There was testimony of other witnesses that the fire seemed to start all about the store, or at various places in the store all at one time. This fact, in connection with the evidence to which attention has just been called, might well have induced the jury to believe that these goods were being thus packed and carried out in anticipation of that fire, which he started simultaneously at various places in the store. The two witnesses, to whose testimony attention has specially been called, did not make a first rate showing for themselves by their testimony, but we are not prepared to say that the jury should not have believed that Jessie Dorff did not see what she says she saw nor that Berman did not say to Cohen what Cohen says he said. The court did not err in overruling the motion to direct a verdict for the defendant.

Attention has already been called to the charge of the court in reference to the identity of the person named in the indictment as the person who actually owned the property.

What was said by the court was a proper submission of this question to the jury, and the charge, as a whole, was proper. Indeed, but for this part of the charge, it is not complained of.

A motion was made for a new trial, after the verdict of guilty was returned,' and a large number of affidavits were filed in support of that motion. Among them, an affidavit stating that counsel for the state, in his closing argument, said in substance, that if the prisoner was a man of good character, he ought to have introduced evidence to establish that. That it was a sad thing that an honest man was not able to produce anybody to testify that he was such. Prom this affidavit it appears that such language was used; that the objection to it was made at the time, but only that Judge Ong said, “I oall the court’s attention to this,” and the court seems to have said nothing. But the court in its charge said to the jury, that no attention should be paid to this language of the prosecutor. If this language was used by the prosecutor it was exceedingly^ improper, and it would have been well for the court to rebuke counsel who used it, but we are not called upon to say whether, in the absence of an objection being made at the time, what was said by the court in the charge was sufficient to cure the wrong, and we, are not called upon to pass upon that, for the reason that for aught that appears in the bill of exceptions, an affidavit may have been filed denying that this language was used. There is no certificate in the bill that all the evidence submitted on the motion for a new trial in contained in the bill. It is certified in the bill that all the evidence introduced or offered at the trial is contained therein. That evidence, of course, is the evidence introduced prior to the evidence upon which the-court acted in passing upon the motion for, a new trial, and following that come these affidavits, to one of which attention has been called, and nothing to show that these affidavits constituted all the evidence introduced. For aught that appears then, it may have been shown either by affidavit or otherwise that the language was not used.

One matter complained of, to which attention has not been called, is the admission of evidence of other fires, in property occupied by the prisoner. An examination of the record shows that attention was first called to a number of other fires by the prisoner himself, in answer to questions put to him by his own counsel. We think this opened up the field so as to permit the state to show that there were other fires in buildings occupied by the prisoner, which he had not 'admitted or attempted to explain, and that there was no error in the admission of such evidence.

The result is that the judgment is affirmed.


author: Marvin, J. ■ Winch, J., and Henry, J.,

text:
    CORPORATE STOCK AS ALIMONY.
    Circuit Court of Cuyahoga County.
    The Cleveland & Buffalo Transit Company v. Kathryn Beeman; and Five Other Cases.

    Decided, May 10, 1909.

      Alimony — Allowance of, in Shares of Sioeh, Where Corporation a Party to Case — Decree to Operate as Transfer of Shares.

    In an action for alimony, with constructive service only upon the defendant husband, but actual service upon a corporation in which the husband owns stock, said stock may be allowed the wife as alimony and an order made upon the corporation, ordering it to transfer the certificates of stock to her, if in its possession, and providing that in the event of its inability to transfer them to her that the decree ol' the court should operate as such transfer so as to vest in her the title thereto.

      Goulder, Holding c(? Mas ten, for plaintiff in error.

      G. L. Shaw, contra.

       Affirmed without opinion, on authority of Benner v. Benner, 63 Ohio State, 220; affirmance found in 81 Ohio State, 509.

   Marvin, J. Winch, J., and Henry, J.,

concur.

This case (No. 4258) together with the cases-following up to and including number 4263 all raise the same questions, and the determination of one is the determination of all.

Suit was brought in the court of common pleas by Kathryn L. Beeman against her husband, Lester A. Beeman, for a divorce and alimony. Later, the prayer for divorce was abandoned and the ease prosecuted for alimony alone. The defendant in that action, Lester A. Beeman, was a non-resident of the state of Ohio at the time the action was begun, and the only service had upon him was the constructive service by publication as provided for in the statute.

Each of the several plaintiffs in error in these cases is a corporation for profit. When the suit was begun in the court of common pleas, Lester A. Beeman was a stockholder in each of these corporations, and each of the corporations ivas made a defendant in that action, and each ivas served with summons.

On the motion of the plaintiff in that action a restraining order was allowed against each of these corporations, forbidding the transfer of any of the stock standing in the name of Lester A. Beeman on their books to any other person. Upon final hearing the court awarded all the stock standing in the name of Lester A. Beeman in these several corporations to Kathryn L. Beeman, as alimony, and ordered each of said corporations to deliver to the said Kathryn L. Beeman the original certificates for such stock, and in case of the inability of said corporations or any one of them, or the refusal of any one of them to deliver such certificates, that the decree of the court should operate as a conveyance of the several shares of stock in each of the corporations to the said Kathryn L. Beeman. To this judgment and order of the court error is prosecuted here, and a carefully prepared brief is furnished in behalf of the several plaintiffs in error, contending that the judgment was erroneous, and giving many plausible reasons for such contention. But whatever doubt might exist in bur minds, were it not for the case of Benner v. Benner, 63 O. S., 220, is resolved by-the judgment in that ease in favor of the defendant in error.

The argument in brief on behalf of the plaintiff in error is that as no personal service was made upon the defendant, Lester A. Beeman, no personal judgment could be rendered against him for alimony and that the only way in which, in such case, his property could be reached, is by such proceedings as puts the property in the custody of the court, and makes the case, to that extent, a proceeding in rem only, and that an injunction allowed against the custodian of such property (for the several corporations are the custodians of the stock of the several stockholders; see Bank v. Towle Mfg. Co., 67 Ohio St., 306), is not such taking of the property by the' court as will authorize a decree that the ownership of the property be transferred from the owner of said stock before the injunction, to another party in the suit.

In the case of Benner v. Benner, supra, nothing was done to take the property of the defendant in that action into custody of the court except the allowance of an injunction against the defendant prohibiting him from disposing of his property. The defendant in that action was a non-resident and there was no service other than constructive service by publication upon him. No injunction was allowed against anybody but him. True, the property there was real estate situated within the jurisdiction of the court. Here the property is intangible, but it has a situs and that situs is where the custodian of the property is, to-wit, the corporation. See the opinion in Bank v. Mfg. Co., 67 Ohio St., 314, supra.

The distinction between the case of Benner v. Benner, supra, and the present case, sought to be shown in the brief of plaintiffs in error, fails to convince us that the principle in that case must apply to this. Indeed, the reason for its application here seems stronger than its application in that case, for each of the parties here enjoined by the order of the court was actually served with summons in the action, while the property was in the possession and under the control of the corporations, and we reach the conclusion, therefore, that the judgment of the court of common pleas was right and in each of the several cases the judgment is affirmed.


text:
    ADULTERATION OF MAPLE SYRUP.
    Circuit Court of Cuyahoga County.
    H. Y. Scanlon v. State of Ohio.
    Decided, May, 1909.

      Criminal Law — Selling Adulterated Maple Syrup — When Affidavit Sufficient — Evidence Required for Conviction.

    1. In a prosecution for selling adulterated maple syrup, a charge that the accused sold a package containing “a half pint, more or less,” is sufficient, as the offense consists in selling a package, whether great or small.
    2. It is not necessary in the affidavit charging such offense to set out in full a copy of the label on the package, but it is sufficient to state that it had on it the word “maple.”
    3. The evidence is sunicient to warrant a conviction for selling adulterated maple syrup if it shows that the substance sold contained anything not produced by the evaporation of .pure sap from the maple tree.

      T. J. Ross and T. Qmgley, for plaintiff in error.

      John A. Cline, contra.
   Marvin, J.; Winch, J., and Henry, J.,

concur.

Seanlou was prosecuted before a justice of tbe peace upon an affidavit cbarging that he sold to one C. II. Waid one half pint, more or less, of an adulteration of maple syrup that was not then and there the unadulterated product produced by the evaporation of pure, sap from the maple tree, and that the said package containing said adulterated maple syrup sold as aforesaid, had on it the word “maple” as a part of the name of said syrup, contrary to the statute in such case made and provided, and against the peace and dignity of the state of Ohio.

The result of the prosecution was that Scanlon was found guilty.

Upon proceedings in error taken to the court of' common pleas by Scanlon this judgment was affirmed, and the present proceeding is prosecuted for the purpose of reversing the judgment of the two lower courts.

It is claimed, first, that the affidavit upon which the prosecution was based was insufficient. The sufficiency of this affidavit was challenged before the justice' of the peace both by motion to 'quash and by demurrer, both of which were overruled. It is said that the quantity charged to have been sold, which in the affidavit is averred as “one half pint, more or less,” is insufficient. The claim is not well taken. It was not necessary that the quantity should have been specified at all. The language of the statute, which is Section 4200-66, reads:

“.Any person who shall offer for sale or sell or deliver any adulterated syrup * * maple syrup in any package having the word ‘maple' or any compounding of this word, as the name or part of the name of the syrup, shall, upon conviction, be punished,” etc.

The offense, then, consists in the selling of a package, whether great or small, of the adulterated product, labeled in violation of the law.

To say that the words “a certain quantity to-wit, one half pint, more or less,” do not charge that anything is in the package is denying the plain import of the words. If one says, “I own land, an acre, more or less,” when he owns no land, states what is not true, and if one being examined as a witness, under oath, where the fact of his ownership of land was material to the issue on trial should say, in answer to the question, “Do you own any land, and if so, how much?” “I do own land, an nave-, more or less,” when he owned no land at all, would be guilty of perjury. This is a sufficient answer to the objection made as to the quantity.

It is said, however, that the label should have been set out in full instead of simply averring that package sold had on it the word “maple” as a part of the name of the said syrup. This objection is not well taken. The accused was sufficiently advised by this language of what claim was made against him, and the affidavit was sufficient, under Section 7215 of the Revised Statutes of Ohio, providing what defects in an indictment are not fatal, the last clause of which section (speaking of what shall not be fatal to an indictment), reads: “Nor for any other defeet or imperfection which, does not tend to the prejudice or substantial rights of the defendant upon the merits.”

There was no error in overruling the demurrer. to this affidavit, nor in overruling the motion to quash.

It is urged, however, that the facts as shown by the bill of exceptions did not warrant the conviction. It was shown that the package sold had upon it the words, “Ohio Maple Syrup” or had the words “Western Reserve Ohios Maple Syrup.” ' As to which of these labels was upon the package we are unable to say because the package is not before us. We have, however, assumed that it was once attached to the bill of exceptions, as we find a string upon the bill which would indicate that something had been attached, and we are not disposed to refuse to consider the bill because it seems by some accident to have been, probably inadvertently, and perhaps by the judge of the common pleas court, taken from the bill. We find from .the evidence that the plaintiff in error had upon some of his packages the words “Ohio Maple Syrup,” and upon others “Western Reserve Ohio Maple Syrup.” Either of these labels would be a violation of the statute, provided the article sold was not pure maple syrup or pure maple sugar.

The statute defining what shall constitute maple sugar and maple syrup is Section 4200-66 and reads:

“That maple sugar, or pure maple sugar, and maple syrup, or pure maple syrup, shall be the unadulterated product produced by the evaporation of pure sap from the maple tree. ’ ’

Section 4200-62 shows and provides that “any substance purporting to be maple syrup or maple sugar, not made in compliance with Section 1 of this act 4200-62 shall be deemed an adulterated substance of maple syrup and maple sugar.

We have given no consideration to the weight of this product nor to the analysis of it further than to ascertain from the evidence of the plaintiff in error himself that it was not produced by the evaporation of pure sap from the maple tree. He says that by his process he obtained pure syrup from the maple tree, but he says that there was combined with it a product of the sugar cane which he calls “Sucrose.” Whether it is as good as pure syrup or pure maple sugar, or is better or worse, is a matter of indifference so far as this ease is concerned. It was not made up by the evaporation of the pure sap of the maple tree. That being so, the sale of it labeled as this was shown to be, was a violation of the statute, and the court was justified in finding the accused guilty, and the action of the court of common Dleas in affirming the judgment of guilty was correct, and that judgment is affirmed.


author: Marvin, J.; Henry, J.,

text:
    CLAIM AGAINST ADMINISTRATOR FOR BOARD AND CARE.
    Circuit Court of Cuyahoga County.
    Frank T. Edgar v. Siegel Schock, Administrator.

    Decided, May 24, 1909.

      Action for Board and Care — Member of Family for Whom Services Rendered — Evidence Insufficient to Establish Contract.

    In an action against an administrator to recover for the board and care of his intestate, brought by a son-in-law in whose family intestate lived, a contract for such board and care is not made out by evidence that a witness saw intestate pay plaintiff $100 with the statement that it was on account, and a statement to another witness that he intended to make his home with plaintiff and had made arrangements for his board and keep while with him.

      John A. Thompson, for plaintiff ia error.
    P. D.. Metzger and Green & Bennett, contra.

       Affirmed without opinion, Edgar v. Schock, 85 Ohio State, 448.

   Marvin, J.; Henry, J.,

concurs;

Winch, J., not sitting.

The parties here are as they were in the court below. Suit was brought by the plaintiff for the board and care of the defendant’s intestate for six years next preceding the death of such intestate. Upon the trial the court, at the close of the plaintiff’s evidence, sustained a motion made by the defendant to direct a verdict in the defendant’s favor, and it is this action of the court which is complained of here as a ground of reversal.

' The evidence shows that the decedent was the father of the plaintiff’s wife, that he lived in the family of the plaintiff for the time charged in the petition, and that he had a room and his board and such care as he required from the plaintiff and his wife, during all that time, and that he paid to the plaintiff some money during that time, that the amount so paid was much less than the board and care of the decedent was worth. But there is no evidence which shows that a contract was ever entered into between the decedent and the plaintiff by which the plaintiff was to be paid for such support and care.

The plaintiff’s wife testifies that,,she saw her father transfer to her husband $100 at one time while he was so living with them, and that he said to her that he had paid this to her husband on account. One Charles Beman testifies that while the decedent was living with the plaintiff,. he, the decedent, said to the witness, that he intended to make his home with Mr. Edgar’s folks, and as Mr. Edgar had nothing for him to do, he made arrangements to pay him for his board and keep while he was there, and he said it was because he felt more satisfied to live with his daughter May, Mrs. Edgar, than with any of his children.

These two items of evidence come the nearest to showing that there was a contract between the decedent and Edgar for board and support of any which was introduced, and these come far short of showing what is required in order that one who boards and cares for another member of his own family may require compensation therefor. The case of Hinkle, Executor, v. Sage, 67 Ohio St., 256, is so much like the present case that the principle there announced clearly governs this case. In that case suit was brought by a daughter-in-law against the executors of the will of her husband’s father, for care and support and nursing during the latter years of the father’s life, as in this case the suit was brought by the son-in-law for the care and support of his wife ’g father during the latter years of his life.

In the case just referred to the syllabus reads:

“In an action to recover compensation for services, when it appears that the plaintiff was a member of the family of the person for whom the services were rendered, no obligation to pay for the services will be implied; and the plaintiff can not recover in such case unless it be established that there was an express contract on the one side to perform the services for compensation, and upon the other side to accept the services and pay for them.
“Such contract may be in writing or it may rest entirely in parol, and it may be proved by direct or indirect evidence; but to entitle the plaintiff to recover the contract must be established by clear and unequivocal proof.”

Counsel for plaintiff in error call our attention to the case of the Estate of John P. Skelton, deceased, 20 C. C., 704. This ease was decided at the January term, 1900, of the Circuit Court of Hamilton County, and to the extent that the circuit court finds that it is in conflict with the ease of Hinkle v. Sage, supra, we must follow the latter case, first, because it is a decision of the Supreme Court of the state, and secondly because it was decided two years later' than the Skelton case.

Applying the principles enunciated in the Hinkle case the court was entirely justified in directing a verdict for the defendant, and the judgment is affirmed.


text:
    DIVORCE FROM AN INSANE DEFENDANT.
    Circuit Court of Cuyahoga County.
    Gilbert H. Benton v. Sarah Benton.
    Decided, May 24, 1909.

      Divorce — Insanity of Defendant — Aggressions Committed Before Insanity — Marriage Void if Insane When Contracted.

    1. A decree of divorce may be entered against an insane defendant for aggressions prior to the insanity.
    2. A divorce granted for fraud in the marriage contract in concealing defendant’s congenital insanity from the plaintiff, is not void because the act was committed while insane, for if the defendant was insane when he committed the fraud, the marriage is void.

      Fred F. Truhlar, for plaintiff in error.

      Kerruish é Kerruish and--Freiberger, contra.
   Marvin, J.; Henry, J.,

concurs;

Winch, J., not sitting.

The parties here are as they were in the court below. The plaintiff brought suit for a divorce from the defendant in the court of common-pleas, alleging as ground therefor that at the time that the marriage between the plaintiff and the defendant was contracted, the said defendant was the wife of another man. The defendant answered, denying that she was the wife of another man, from whom she obtained a divorce in the common pleas court of this county a.t the April term, 1897. To that the plaintiff replied, admitting’ that a decree was entered (in said last named court at the time stated in the answer) by the terms of which, if valid, the defendant was divorced from her former husband, John O. Butt, but alleges that the court, at the time of entering such decree, was wholly without jurisdiction to make the same, wherefore the decree was absolutely void and left the defendant still the wife of said Butt. On the trial, the record in the divorce proceedings against Butt was introduced in evidence, from which it appears that the petition filed against Butt contains the following allegations as cause for divorce:

“The plaintiff says that at the time of said marriage but unknown to her, said defendant, though entirely sane upon some subjects, was nevertheless at that time a victim to congenital insanity, lapsing occasionally into that condition of mental disturbance known as congenital imbecility. And she says that said difficulty was of that character which escaped observation except to those having expert knowledge; and that the same wás accompanied with cunning and a disposition to secrecy and concealment, sometimes characteristic of the -mental condition aforesaid. And she says that said congenital condition, though well known to defendant and understood by him to exist, was by him carefully concealed from said plaintiff and that the marriage ceremony aforesaid was enacted between them as aforesaid in complete ignorance upon her part by reason of her youth and inexperience,” etc.

And so, she says, that Butt procured the marriage contract between them by fraud.

At the time the suit was brought by the present defendant against Butt he was insane, and confined as such in a state hospital for the insane in this state. That fact being made to appear to the court a guardian ad litem was appointed for him, and answer filed denying the allegation in the petition' in respect to the mental condition of Butt at the time of his marriage, and denying all fraud on his part in the contract of marriage entered into between the two parties.

Upon the hearing the court entered its decree finding that “■the allegations of said petition so far as respects the averments of fraudulent contract are true, and further finds that by reason of said facts the plaintiff is entitled to the relief by her prayed for. Wherefore, it is ordered, adjudged and decreed that the marriage contract heretofore existing between her and said defendant be, and the same is hereby set aside, annulled and held for naught, and she be and is hereby wholly divorced from said defendant, and restored to all her rights as an unmarried woman. ’ ’

It is the law in this state that a divorce may be decreed' against the party who, at the time of entering the decree and of bringing the suit, is insane; service being had upon him as in other cases against insane persons, provided the aggressions for which the decree is sought were committed prior to such insanity.

It is urged in this ease that the aggressions, to-wit, the fraud perpetrated upon the present defendant by her former husband, upon which she obtained her divorce, is shown by the petition in that case to have been committed while he was insane. This contention' is not borne out, as we think, by the petition. A fair construction of the language used, in that Butt was intermittently insane and that .the fact that such intermittent insanity was concealed from the woman to whom he was married and that the concealment of such intermittent insanity was a fraud upon her, and the court finding that to be true, certainly had the jurisdiction to grant the divorce. We must assume that the court found that the mental derangement from which Butt was suffering at the time of his marriage was not such as to prevent him from being capable of contracting the marriage relation, but was of such a nature that it was a fraud upon her to whom he was about to be married, and that he concealed the fact that he was subject to this intermittent insanity; otherwise there was never any valid marriage between the defendant in this ease and Butt; for if he was insane to the extent that he was incapable of perpetrating a fraud, then be was insane to the extent that he could not have contracted a marriage at all, so that after the decree in the former case, the defendant in this case was not the wife of Butt. Either she was released from such marriage by the decree, or she never was Butt’s wife. We find that she was released by the decree, but if we are wrong in this, still, as has already been said, it must be that if she was not so released, she never was Butt’s wife.

In the suit brought by the plaintiff here against the defendant, she not only answered setting up the facts as hereinbefore set out, but she set up by way of cross-petition acts of cruelty on the part of the plaintiff, which, if established by the evidence, entitle her to alimony for which she prayed, and which was decreed to her.

The purpose of the present proceedings is to reverse this judgment for alimony, for the reasons already stated, that is, that the defendant was never the plaintiff’s wife. Having found as we have, that she was the plaintiff’s wife, the court was justified in allowing her alimony, and that judgment is affirmed.