author: GORMAN, J.

text:
    BONDS — PLEADING
    [Hamilton (1st) Court of Appeals,
    March 29, 1915.]
    Jones, Jones and Gorman, JJ.
    Royal Arcanum (Supreme Council) v. Emma Sandau Folz et al.
    1. Conditions of Bond Sued on Discovered by Search of Record at Hearing on Demurrer.
    While in an action to enforce a bond it is not competent, on demurrer to the petition, to look to the bond attached thereto for the purpose of determining whether liability has arisen thereunder, nevertheless a reviewing court, upon searching the record and ascertaining from a prior pleading the conditions of the bond claimed to have been breached and there set out in haec verba, may adjudge whether the default alleged is within the condition of the bond.

      2. Liability of Sureties on Bond of Indemnity Against Claim in Litigation Together With Counsel Fees and Other Expenses.
    When the condition of a bond is that the obligee shall be held blameless on account of a certain claim in litigation, together with counsel fees and other expenses, the indemnity promised covers only the amount the obligee is compelled to pay by legal proceedings, and does not include counsel fees and other expenses incurred in defeating said claim.

      Bdtuin J. Howard, for plaintiff in error.

      Ilinkead & Rogers, for E. S. Folz.

      Adam A. Kramer, for Eleanora C. Alms and Williams Alms.
   GORMAN, J.

The action below was one to recover upon a bond executed .by William Sandau as principal, and William IT. Alms and Frederick H. Alms as sureties, in favor of the plaintiff in error.

Plaintiff in error, a fraternal benevolent association, had issued a certificate in the sum of $3,000 upon the life of Frederick H. Sandau. At his death the certificate was presented for payment and at that time the wife of Frederick H. Sandau, Lillian Sandau, made claim for the money payable under the certificate. It appeared that there had been a former certificate issued by defendant in error on the life of Frederick H. Sandau payable to Lillian Sandau, his wife. This certificate had not been taken up and canceled, but a new certificate was issued upon the life of Frederick H. Sandau, payable to his brother, William Sandau. This brother, William Sandau, paid the premiums during the lifetime of Frederick H. Sandau, and presented this certificate for payment upon his death. Thereupon, plaintiff in error stated that Lillian Sandau, the widow of Frederick H. Sandau, made claim to the fund. Plaintiff in error finally agreed to pay the $3,000 to William H. Sandau upon condition that he execute a bond of indemnity to the plaintiff in error, which bond was accordingly executed, a copy of which is attached to the petition and made part thereof.

A demurrer was sustained to the petition, and thereupon an amended petition was filed setting out many facts, and attaching a copy of the bond to the amended petition, and making it a part thereof.

. The defendant, Emma Sandau Folz, as executrix of the estate of William Sandau, deceased, demurred to the amended petition for the reason that same did not state facts sufficient to constitute a cause of action. Eleanora C. Alms, administratrix of the estate of Frederick H. Alms, and Eleanora C. Alms individually also demurs to the amended petition, as did William H. Alms. Their demurrers also were upon the grounds that the amended petition did not state facts sufficient to constitute a cause of action. The demurrers to this amended petition were sustained, and the plaintiff not desiring to plead further or amend the amended petition, the defendants were all dismissed, with their costs.

Error is prosecuted to this judgment of the court below in sustaining the demurrers to the amended petition.

The copy of the bond attached to the amended petition is as follows:

“Know all men by these presents.
“That we, William Sandau, as principal, and William.H. Alms and Frederick IT. Alms, as sureties, all of Cincinnati, Ohio, are held and firmly bound unto the. Supreme Council of the Royal Arcanum, a corporation duly established under the laws of the Commonwealth of Massachusetts, in the sum of $3,000.00, to be paid to the said Supreme Council of the Royal Arcanum, its successors or assigns, for the payment whereof well and truly to be made, we jointly and severally bind ourselves, our heirs, executors and administrators firmly by these presents.
“Signed by us this 17th day of February, A. D., eighteen hundred and ninety-seven.
‘ ‘ The condition of the above obligation is such that whereas, the Supreme Council of the Royal Arcanum, on the 12th day of October, 1893, issued its benefit certificate No. 141,020, to Frederick H. Sandau, a member of Hoboken Council No. 99, Royal Arcanum, located at Hoboken, N. J., payable upon the death of said Frederick H. Sandau, to his brother William Sandau;
“And whereas, the said Frederick H. Sandau departed this life on June 30, 1896, and due proof of his death has been furnished to the said Supreme Council of the Royal Arcanum;
“And whereas, all of the assessments, dues and payments required under said certificates have been duly paid since the issuance thereof by the said William Sandau;
“And whereas the said Frederick H. Sandau died without leaving any children, but leaving Lillian Sandau as his widow;
“And whereas the said Lillian Sandau claims some interest or ownership in said certificates, or the amount payable thereunder by reason of the existence of a prior certificate, and the said William Sandau claims to be the sole beneficiary under said certificate, and that the said widow has no right, title or interest in or to said certificate, and is desirous of collecting the amount payable thereunder, and the said Supreme Council of the Eoyal Arcanum is willing to pay the same to him, provided it is indemnified against any claim or interest to which the said Lillian Sandau is or may be entitled;
“And whereas, in consideration of the payment of the amount due under said first named certificate by the said corporation to the said William Sandau, the said William Sandau has agreed, and does hereby agree, in case the said corporation shall ever be called upon or required through any legal proceedings to pay to the said Lillian Sandau any sum of money whatever under said certificate or any prior certificate issued- by said corporation to said Frederick H. Sandau or by reason of or under the membership of said Frederick H. Sandau in said Hoboken Council No. 99, that he will on demand pay to said corporation, the said sum, together with such counsel, court and witness fees and other expenses as it shall reasonably incur in connection with the claim of said Lillian Sandau or any person claiming by, through or under her and will fully reimburse the said corporation in any sum and all sums it shall be thus obliged to pay said Lillian Sandau and in all such fees and expenses as aforesaid.
“Now, therefore, if the said William Sandau shall fully keep ■ and perform his said agreement; then this obligation shall be void; otherwise it shall be and remain in full force and effect.
“Wm. Sandau (Seal.)
“Fred H. Alms (Seal.)
“Wm. H. Alms (Seal.)
“Executed in our presence:
“John Fred. Theler,
“Wm. Stegner.
‘ ‘ State of Ohio, County of Hamilton, ss:
“Be it remembered that on the 17th day of February, 1897, personally appeared before me, the undersigned Notary Public in and for Hamilton County, Ohio, duly commissioned and qualified, William H. Alms and Frederick H. Alms, the parties mentioned in the foregoing instrument, and acknowledged the signing and sealing thereof to be their voluntary act for the uses and purposes therein mentioned.
“In testimony whereof, I have hereunto subscribed my name and affixed my Notarial seal at Cincinnati, Ohio, this 17th day of February, 1897.
“Jacob Kramer,
“Notary Public in and for Hamilton County, Ohio.”

Now it will be seen from a perusal of this bond that William Sandau agreed in case the corporation should ever be called upon or required through any legal procedings to pay the said Lillian Sandau any sum of money under said certificate or any prior certificate, or by reason of the membership of said F. H. Sandau in said corporation, he, William Sandau, would on demand pay to said corporation the said sum, together with such counsel, court and witness fees and other expenses as it shall reasonabty incur in connection with’the claim of said Lillian Sandau, and will fully reimburse the corporation in any sum and all sums it shall be thus obliged to pay to said Lillian Sandau and in all such fees and expenses as aforesaid.

The amended petition discloses that suit was brought by Lillian Sandau against the plaintiff corporation in the circuit court of Hudson county, N. J., to recover the $3,000 which she claimed under the certificate issued by plaintiff, or under a former certificate which was taken up and replaced by the one that was in existence at the time of the death of her husband, Frederick H. Sandau. This cause was pending for many years in the New Jersey court, and a judgment was finally rendered on December 13, 1911, in favor of the plaintiff in error, the Supreme Council of the Royal Arcanum, and the action of Lillian Sandau was dismissed and she recovered no sum whatsoever. Three thousand dollars was paid to William Sandau upon execution of the bond.

Plaintiff in error avers that it incurred expenses amounting to $142.76 for taking depositions and testimony in said case in New Jersey, which sum was paid by William Sandau in his lifetime, and it also incurred an expense of $496.33 as attorneys fees for defending said cause in New Jersey, said sum having been charged by one W. O. Apgar, and attorney, and that the same was reasonably worth the amount of his charges. Plaintiff in error therefore prays judgment against the defendants in error on said bond in the sum of $496.33.

The question submitted to the court below, and also to this court, is what is the construction to be placed upon this bond. It is contended by counsel for plaintiff in error that the principal, 'William Sandau, and the sureties on the bond were obligated to pay counsel fees, court costs and witness fees, and other expenses connected with the claim of Lillian Sandau, whether she recovered a judgment or not; while counsel for the sureties and Mrs. Folz, the widow of Sandau, claim that the condition of the bond is such that they were not required to pay except where there was a recovery against the plaintiff in error in favor of Lillian Sandau, in which event they were to pay under the bond the amount of recovery, together with the court costs, attorney fees, witness fees and other expenses.

It may be that it was the intention of the parties to draw a bond to indemnify the plaintiff in error against any loss or expenses which it might incur by reason of the claim of Lillian Sandau, whether her claim was successful or unsuccessful, but as we read this bond we are of the opinion that the condition of the bond is such that the principal and the sureties thereon were not obligated to pay to the plaintiff in error any sum whatsoever unless it was required to pay by legal proceedings.

Now the amended petition discloses that the plaintiff in error was not required to pay anything to Lillian Sandau in the court proceedings, and therefore plaintiff in error has no claim upon the principal and sureties upon this bond, because it was not called upon or required to pay Lillian Sandau, by legal proceedings or otherwise, and it was only in the event that the plaintiff in error was required to pay by legal proceedings that counsel fees, witness fees, court fees and other expenses were to be paid. The language of the bond is that he will on demand “pay to said corporation the said sum, together with such counsel, court and witness fees,” etc., as it shall reasonably incur in connection with the claim of said Lillian Sandau. Said sum refers to the money which the plaintiff in error may be called upon or required to pay to Lillian Sandau by legal proceedings, and it was only in the event that it was required to pay this sum that the plaintiff in error could call upon the principal and the sureties on this bond to pay a sum other than counsel fees, witness fees and court costs. The position of plaintiff in error was that William Sandau, or Lillian F. Sandau, the widow of Frederick Sandau, was entitled to $3,000, and it was desirous of protecting itself against the payment of this sum twice. William Sandau was anxious to receive the $3,000, but if it should be adjudged in a legal proceeding that Lillian Sandau was entitled to the money, then he was to refund the $3,000 paid to him by the plaintiff in error.

We do not think that the principal and the sureties on this bond obligated themselves to pay court costs, witness fees, counsel fees and other expenses, if Lillian Sandau failed in her legal proceedings to recover from the plaintiff in error. We think that the plain language of the bond calls for no other construction, if we take into consideration the words “together with such counsel and witness fees” in connection with that which precedes the words. It will be manifest that it was only in the event that plaintiff in error was obliged to pay to Lillian F. Sandau, that William Sandau was to reimburse plaintiff in error for the amount which it was obliged to pay to Lillian F. Sandau, and then counsel fees, court costs, witness fees, etc., were also to be paid. This conclusion is further strengthened by the words “fully reimburse the corporation in any sum and all sums it shall be thus obliged to pay said Lillian F. Sandau and in all such fees and expenses as aforesaid.” The word “thus” refers to the obligation of the plaintiff in error to pay to Lillian F. Sandau by legal proceedings and not otherwise.

The amended petition having disclosed that the plaintiff in error was not required or called upon by legal proceedings to pay Lillian F. Sandau, but on the contrary was discharged by legal proceedings from any liability to her, plaintiff in error was not in a position to call upon the principal and sureties on this bond to pay any counsel fees, court costs, witness fees or other expenses incurred in that litigation. The obligation to pay counsel fees — and that is all that is involved in this case— would only follow the recovery of a judgment in favor of Lillian Sandau against the plaintiff in error or the requirement by some legal proceeding upon the part of the plaintiff in error to pay Lillian Sandau a sum of money.

The amended petition sets out that plaintiff declined to pay William Sandau, upon his demand, the $3,000 provided in said certificate, unless said William Sandau should indemnify it by giving it a good and sufficient bond to hold it harmless from loss or liability that it might be called upon or required to pay said Lillian Sandau under said certificate or under said prior certificate and from any loss by reason of the payment by it of any counsel fees, court fees, witness fees and other expenses incurred in connection with the claim of said Lillian Sandau, etc., and to reimburse plaintiff in any sum or sums it should be obliged to pay said Lillian Sandau and from any loss by reason of the payment of any counsel fees, court fees, witness fees and other expenses incurred as aforesaid in connection with the claim of said Lillian Sandau irrespective of whether or not any judgment was rendered in favor of scdd Lillian Sandcm or against the said Supreme Council of the Boyal Arcanum.

The above underscored words are not in the bond executed; nor does plaintiff aver that they are set out in the condition of the bond. All that is averred with reference to the condition of the bond is that plaintiff declined to pay the $3,000 unless William Sandau would execute a bond containing the conditions averred. It fails to state that such a bond was executed. It then avers, after the averments above set out, that William Sandau executed and delivered to plaintiff his certain bond in the sum of $3,000 signed by him as principal and William H. Alms and Frederick H. Alms as sureties, a true copy of said bond being hereto attached and marked “Exhibit A” and made a part hereof. Plaintiff utterly fails to set out the conditions which the plaintiff demanded should be incorporated into the bond. This was not sufficient in our opinion; but it should either have averred that the conditions demanded to be incorporated into the bond, were made a part of the bond, or he should have set out the condition of the bond in haec verba, as it did in the original petition.

By its failure to do this we are of the opinion that its amended petition was fatally defective as against the demurrer.

This ease was argued and briefed in this court by all the parties, on the theory that the copy of the bond attached to the amended petition is a part of the petition. We have doubts as to whether or not the copy of the bond is a part of the amended petition under the decisions construing See. 11333 G. C., but are inclined to the opinion that it can not be considered a part of the amended petition.

Unless the demurrer searches the record so as to enable us to look at the original petition, which does set out the condition of the bond in haec verba, we would not be warranted in holding that the condition of the bond has not been broken or that the terms and conditions thereof are such as preclude a recovery by plaintiff under the averments of the amended petition. There are authorities which hold that on a demurrer to a pleading the court may search the record and look to a similar prior pleading filed by the same party to determine whether or not a judgment should be given against the party whose pleading is first defective in substance. Trott v. Sarchett, 10 Ohio St. 241; Column bus, S. & C. Ry. v. Mowatt, 35 Ohio St. 284, 286; Johnson v. Pensacola & G. Ry., 16 Fla., 623 [26 Am. Rep. 731].

For these reasons we have thought it is not improper to express our views on the construction to be given to the bond and the condition thereof, and so considering this aspect of the case, we have expressed the opinion that there is no liability under this bond, under the pleadings filed in the case.

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

Jones (O. B.), J., concurs.

Jones (E. H.), P. J., dissenting.

The court can not look to the exhibit as a part of the amended petition. Crawford v. Satterfield, 27 Ohio St. 421; Olney v. Watts, 43 Ohio St. 499 [3 N. E. 354], in the latter case the court said:

‘1 If the exhibit could be looked to, as a part of the petition, perhaps it does appear, but the exhibit is no part of the pleading and does not help it out. We are therefore compelled to lay out of view what counsel on both sides seem to concede in argument that we should consider on this demurrer; that is, what appears in the exhibit attached to the petition but not made a part of it.”

The plaintiff in the case before us in its petition undertakes to make the exhibit a part of it, but that does not help the pleading. We must determine the sufficiency or insufficiency of a pleading from its “direct averments.” Olney v. Watts, supra.

Without reference to the bond sued upon and attached to the petition, the pleading states a cause of action, and the demurrer for that reason is not well taken.

But the majority of this court decides the case as if the bond is a part of the amended petition, and it was so argued by counsel. The bond is only evidence, and a copy is required by statute to be attached to the petition. If, upon trial, the evidence does not support the petition, plaintiff must fail; but we can not look to evidence, oral or documentary, in the consideration of a demurrer to the petition.

But since counsel, the lower court and the majority of the members of this court, have looked upon the demurrer as calling for a construction of the bond upon which the claim of plaintiff rests, I must express my disapproval and dissent from the judgment thereon.

The bond given by Sandau and his sureties provides that if the obligee is ever called upon through legal proceedings to pay to Lillian Sandau any sum of money under any certificate issued to Frederick H. Sandau, they will pay to it on demand said sum together with such counsel, court and witness fees and other expenses as it shall reasonably incur in connection with said claim, of said Lillian Sandau, and fully reimburses it in any and all sums it shall be thus obliged to pay her and in all such fees and expenses. At the time this bond was given, the plaintiff had been called upon by Lillian Sandau to. pay to her the amount of the certificate, so that there were in fact two claimants for the fund. It was to protect the plaintiff company that the bond was given.

The interpretation placed upon this bond is unreasonable. The bond is self-explanatory and expresses the agreement between the parties in clear and unmistakable language. Admitting the genuineness of the bond and the allegations of the amended petition, the plaintiff has a right to recover in this action. To hold otherwise involves so many absurdities and inconsistencies as to cast aspersion upon the intelligence and even upon the sanity of the contracting parties. It means that they contracted that if the obligee who was to defend the suit made a weak defense and lost the case, it was to profit thereby, because in such a proceeding the costs and expenses would not be as great as in a ease where capable counsel were employed and a determined effort made to succeed. In the event the ease was lost, as a result of feeble and indifferent defense, the Supreme Council, under the terms of the bond, would on demand be paid the expenses incurred; but if by vigilance and industry it won the ease, it must pay all expenses. It must be admitted that by such a misconstruction, the bond induces negligence, offers a reward for perfidy, and places a premium upon inaction and default.


source: Caselaw Access Project

author: WINCH, J.

license: Public Domain

text:
    GIFTS
    [Cuyahoga (8th) Circuit Court,
    December 24, 1903.]
    Hale, Marvin and Winch, JJ.
    American Trust Co. v. Ida M. Vincent et al.
    Gifts in Praesenti are Invalid when not Accompanied by Unconditional Delivery.
    When at the same time that life insurance policies are assigned and delivered to a person, the assignor executes and delivers to the assignee his promissory note due with interest at a fixed time after date, and at the same time an agreement is executed in which it is recited that the assignor has borrowed from the assignee the amount for which the note is given and assigned to her certain insurance policies as collateral security, which were to be hers absolutely in case the assignor died before the assignee — Held: The three acts constitute one entire transaction of a commercial nature, and that the assignment and delivery of the insurance policies does not amount to a gift in praesenti.

      M. B. & II. II. Johnson, for plaintiff.

      Norton T. Horr and White, Johnson, McCaslin & Camion, for defendant.
   WINCH, J.

The controversy in this case is between the defendants, Ida M. Vincent, claiming a fund arising from insurance policies on the life of John C. Miller, deceased, as a gift made to her by said Miller in his lifetime, and the defendant, Norton T. Horr, administrator of the estate of said Miller, claiming the same fund as part of the assets of said estate.

The claim of Ida M. Vincent is set forth in her cross-petition in the following language:

“This defendant is the widow of Clinton A. Vincent, who had been the son-in-law of said John C. Miller, and who was from the time of his marriage with the daughter of the said John C. Miller, throughout the lifetime of the said daughter and thereafter, during the inter-marriage between this defendant and the said Clinton A. Vincent, looked upon and treated by the said John C. Miller and his wife, Martha, as though he were their natural son, and from the time of the inter-marriage of this defendant with the said Vincent, she was looked upon and treated by the said John C. Miller and his wife, until the latter died, and until the death of the said John C. Miller, as though she were in truth and in fact their daughter by blood, and she, in all respects conducted herself toward them, and each of them, as though she were their natural daughter, and there were many interchanges of good offices and kindness and affection between the said John C. Miller and his wife and this defendant.
“On April 14, 1898, said John C. Miller requested this defendant to lend him the sum of $2,000, as a matter of friendship and kindness. This defendant was then a widow, in poor circumstances, with minor children, of whom she was the only support, and this $2,000 was coming from insurance upon the life of her late husband, said Clinton A. Vincent, and belonging to her and her children.
“Owing to the friendly relations existing between the said John C. Miller and this defendant, she lent him said $2,000, taking from him his promissory note, payable five years after date, bearing interest at the rate of 6 per cent. Said John C. Miller was then sixty years of age, and in good health. He was the owner and holder of three policies of insurance upon his life; one in the Connecticut Mutual Life Ins. Co. for $4,000; one in the Provident Savings & Life Ins. Co. for $1,000, and another in the same society for $2,000.
“Said John C. Miller, in consideration of said loan, and of the friendship and affection existing between him and this defendant, then agreed to transfer absolutely to this defendant said three policies — the same to be hers absolutely; but in the event of her dying before said Miller, then said Miller should have the right to redeem said policies by paying to her estate, the sum of $2,000.
‘ ‘ Said Miller thereupon, on said date, executed and delivered to this defendant absolute assignments, in due form, of all three of said policies and said Miller and this defendant also on that date signed a written agreement, which was intended to, and, as this defendant believes, does express the agreement hereinbefore set forth.
“At the same time said Miller delivered to this defendant said three policies, and they have remained in her possession ever since, with the exception about to be stated.
‘ ‘ Said assignments were at once transmitted to the respective companies, and approved by them. The amount so loaned to the said Mailer was more than enough, as this defendant believes, and avers the fact to be, to pay all his then existing debts.
“Nearly a year after the matters hereinbefore set forth said John C. Miller again asked this defendant, as a matter of friendship, to let him take one of these policies, so that he could secure the sum of $465 borrowed from Adolph Mayer; and as a matter of kindness to one for whom she had great affection, and who had much affection for her, without consideration, she consented thereto, and delivered to him said two thousand dollar policy, and he borrowed said sum of four hundred and sixty-five dollars from said Adolph Mayer, and assigned to him said policy as security therefor, and immediately thereupon executed to this defendant another absolute assignment of said policy, subject only to the lien created by said pledge to said Adolph Mayer, of said policy, and said last-mentioned assignment was at once transmitted to the insurance company, which accepted it and agreed to act upon the same.
“Said Miller in no way obligated himself to pay the premiums on said insurance.
This defendant has demanded, claims the entire amount in the possession of said plaintiff as due to her by reason of the premises. ’ ’

The agreement of April .14, 1898, is as follows:

“Cleveland, April 14, 1898.
“Article of agreement by and between Mrs. Ida M. Vincent and John C. Miller of Cleveland, Ohio.
“Whereas the said John C. Miller has this .day borrowed from the said Mrs. Ida M. Vincent the sum of $2,000 to bear 6 per cent interest from date, and as collateral security has assigned the following life insurance policies to the said Mrs. Ida M. Vincent: policy 163119 in the Connecticut Mutual Life Ins. Co. of Hartford, Connecticut, for $4,000; also policies No. 74371 and 49788 in the Provident Savings & Life Ins. Soc. of New York. The condition of the assignment of the above policies are that if the said John C. Miller dies before the said Mrs. Ida M. Vincent, the policies shall be hers, and I hereby authorize the above companies to pay said policies in full to Mrs. Ida M. Vincent; but in the event of her, Mrs. Ida M. Vincent’s death before the said John C. Miller, then said policies to revert back to the said John C. Miller upon the condition that the said John C. Miller shall pay to the estate of Ida M. Vincent the sum of two thousand dollars.
“Mrs. Ida M. Vincent.
“(Signed) John C. Miller.
“Witness: W. A. Sanders.
“4/14/98.”

The sole claim of counsel for Ida M. Vincent in the argument of this ease proceeded upon the following lines: that the transaction of April 14, 1898, between Miller and Mrs. Vincent was a valid gift inter vivos; that by the assignments endorsed on the policies from the donor to the donee, which took effect immediately, the gift was fully executed by the delivery of said policies to Mrs. Vincent at the time of their transfer; that thejr were accepted at the time by her as a gift; that the gift being so perfected by delivery and acceptance, the condition annexed that should Mrs. Vincent die before Miller, then said Miller should have the right to redeem said policies by paying to her estate the sum of two thousand dollars, does not impair the validity of the gift.

In support of the last proposition that the condition annexed does not impair the validity of a gift, counsel cited numerous cases which we have examined. Most of said cases come more properly under the classification of voluntary trusts rather than of gifts; in most of them there was delivery of property to a third person to hold in trust and pay upon certain conditions to the object of the donor’s bounty; in some of them the donor constituted himself trustee.

Hagerman v. Wigint, 108 Mich., 192 [65 N. W. 756] : “The delivery of a mortgage by its owner to one person with instructions to deliver the same to another after the owner’s death, is a sufficient delivery to meet the requirement of a valid gift inter vivos.”

Bostwick v. Mahaffy, 48 Mich., 342 [12 N. W. 192] : “Property put by a father in the hands of a third party to be delivered to his daughter upon his death, is sufficiently appropriated to belong to her after his death occurs. ’ ’

Ruiz v. Dow, 113 Cal., 490 [45 Pac. 867] : In this case .a deed of real and personal property was made by a husband to his wife, and delivered to a third party for her benefit, with instructions to record it after his decease. Such delivery to a third person was held valid and sufficient to vest title in the wife to all the real and personal property described in the deed.

Green v. Tulane, 52 N. J. Eq. 169, 173 [28 Atl. 9] : Deposit of bonds by Tulane with C. S. G. with instructions to deliver them “in case of my death” to Miss U. P. and her sister A. C. The ladies mentioned were held entitled to the bonds after T’s death. This case also cites the case of Moore v. Darton, 46 De G. & S., 517, where the facts were as follows: A Miss Darton loaned to Moore (the plaintiff) £100, and he signed the following document: “Received of Miss Darton, for the use of Anna Dye, £100, to be paid her at Miss Darton’s death, but the interest at four per cent, to be paid to Miss Darton.” Underneath the same was written, “I approve the above. Betty Darton.” This document was given to Miss Darton. The money was not paid her in her lifetime. Held by Yice-Chancelor Knight Bruce that Moore was a trustee for Anna Dye, for £100.

Wyble v. McPheters, 52 Ind., 393: Delivery by a father of certain bonds to a third person with instructions to give the bonds to certain children upon the father’s death. The trust was upheld.

Blanchard v. Sheldon, 43 Vt., 512: “The defendant’s testatrix in her lifetime delivered to Henry L. Sheldon $300 and took a writing as follows: ‘For value received I promise to pay Auretta Ballou three hundred dollars with annual interest, on demand, if she called for it before she deceased, if not, to be paid to Daniel M. Blanchard, by her order. (Signed) Henry L. Sheldon. Miranda Hines. ’

“This paper she retained and it was with her other papers at her decease, and she had collected no part of said amount. Her intention was in taking this paper to have it drawn so that said Daniel would have whatever she should not use of the $300. Held-. That the $300 became vested in said Daniel, subject to be defeated only by said Aurilla’s taking some further action in regard to it; and she never having taken any, the transaction can be held as a gift inter vivos.”

On page 514 of the opinion Judge Ross says:

“The delivery in a donatio causa mortis may be to a third person to hold in trust for the beneficiary, as was held in Caldwell v. Renfrew, 33 Vt., 213, and Way v. Emery, not yet reported. So a gift inter vivos may be delivered to a third person to hold for the donee. To constitute a valid gift inter vivos, there must be both a delivery of the gift by the donor to the donee, or to some one for the donee, and an acceptance by the donee. In this case there was a delivery of the $300 by the donor to Henry L. Sheldon, for the plaintiff. The law presumes the acceptance of a gift by the donee when it is unaccompanied by any condition to be performed by the donee. Nor do we see, upon principle, how a gift, if absolute, and delivered to a third person for the donee, but not'to be delivered to the donee till the happening of some event, or if liable to be wholly defeated if a certain event occurs, is any the less a valid gift. ’ ’

This case is cited rather at length, because it is one of the eases counsel relies upon as authority for his general claim that a gift may be made upon condition. It will be noticed, however, that the judge delivering the opinion calls particular attention to the fact that the delivery of the gift was to a third person, for the benefit of the donee, and that the third person or trustee held possession of the money until all conditions had been complied with.

Davis v. Ney, 125 Mass., 590 [28 Am. Rep. 272] : A depositor in a savings bank delivered her bank book, accompanied by an assignment of her deposits to B., upon an oral agreement that B. should draw for her what money she wanted during her lifetime, and pay the balance, if any, left at her death to her son. In pursuance of this agreement B. paid to A. certain sums of money before her death, and the balance remaining after her death he paid to her son. Held: That the delivery and assignment to B. constituted a valid gift.

Kendrick v. Ray, 173 Mass., 305 [53 N. E. 823; 73 Am. St. 289] : “A trust which has been established in favor of B. in the proceeds of a policy of insurance on the life of C. payable ‘to and for the sole and separate use and benefit of A., trustee,’ is not inoperative as an attempted testamentary disposition of property by C. ”

The foregoing eases all have the incident of a delivery to a third person as trustee for beneficiaries named. The following cases cited by counsel for Mrs. Vincent illustrate the creation of a trust in the donor himself:

Ray v. Simmons, 11 R. I., 266 [23 Am. Rep. 447] : B. deposited in a savings bank certain moneys in his own name as trustee for R. B. gave the bank book to R., who returned it to B., in whosé control it remained. Reid: that the trust was completely constituted. Reid, further, that the trust being constituted, the fact that it was voluntary, was no reason for refusing relief. To constitute a trust it is enough if the owner of property conveys it to another in trust, or if the owner of personalty unequivocally declare, either in writing or orally, that he holds it in praesenti in trust for another.

Scrivens v. North Easton Sav. Bank, 166 Mass., 255 [44 N. E. 251], is like the Rhode Island case, the controversy being over a deposit by “A. in trust for B., payable in case of my death to B.”

Branch v. Byrd, 15 N. C., 142: The court in this ease construed an informal deed of slaves, wherein a life estate therein was renewed in the grantor and held that the intention to pass the chattels in absolute property to the donees, immediately upon the execution of the deed was explicitly declared, there was no condition in the gift; the gift was of the slaves subject to a life estate reserved.

But the case most nearly sustaining the contention of counsel for Mrs. Vincent is Schollmier v. Schoendelen, 78 Iowa, 426 [43 N. W. 282; 16 Am. St. 455], in which the facts were as follows:

“Plaintiff’s intestate had a deposit in a bank evidenced by entries in her pass book. At the end of the account she procured the cashier to write as follows: ‘Pa3r to S. and H. all of the within deposit after my decease, ’ and signed her name thereto. After this she neither deposited any more money nor drew upon the deposits already made. Subsequent to the assignment, and before her death, the bank book was in the possession of S. and TL, and after her death they drew the money. Reid: 1. That the writing was in terms a full assignment of the amount shown by the book to be due at the time it was made, and not of the amount which should be due at the death of the assignor, and that if it was treated by the assignor as a completed transaction it passed a present interest in the bank account, and was not vulnerable to the objection that it was of a testamentary character, and therefore void, because not executed in the manner provided by law for such instruments. 2. The assignment in such case having been of the whole deposit, and the bank having had notice thereof, and having a rule that deposits, evidenced by a bank book could be drawn out only upon the production of the book — Held: That if the book was delivered by the assignor to the assignees for the purpose of perfecting the assignment, it became irrevocable, and bound the bank to hold the deposit for payment to the assignees upon the 'death of the assignor. ’ ’

In the opinion Judge Robinson, who decided the case, distinguishes it from the case of Basket v. Hassell, 107 U. S., 602 [2 S. Ct. 415; 27 L. Ed. 500], and as the latter case is much relied upon by counsel for the administrator in this case, it is proper to quote what Judge Robinson says on page 430 of his opinion about the Basket case:

‘ ‘ It is contended on the part of appellee that the assignment was so drawn as to be revocable, and the case of Basket v. Hassell, (Supra) is cited as sustaining that position. In that case a certificate of deposit was endorsed by its .owner during his last sickness as follows: ‘Pay to Martin Basket, of Henderson, Kentucky, no one else; then not till my death. My life seems to be uncertain. I may live through this spell. Then I will attend to it myself. H. M. Chaney.' After making this endorsement Chaney delivered the certificate to Basket, and died. The court speaks of this transaction as being, in substance, not an assignment of the fund on deposit,- but a check upon the bank against a deposit, which, as is shown by all the authorities, and upon the nature of the case, can not be valid as a donatio mortis causa, even where it is payable in praesenti, unless paid or accepted while the donor is alive, But there is a marked difference between the effect of the endorsment in that case and the assignment in this. While in that case the endorsed certificate was delivered, yet the language of the endorsement showed clearly that it was not to take effect in case the endorser recovered. As stated by the court, the donor attached to his endorsement and delivery a condition precedent which must happen before it became a gift. In this case the conditions related to the time when the interest transferred might be enjoyed, and not to its transfer.”

Now let us see if the case at bar squares itself with this Iowa case. To construe the transaction we must consider its elements.

There were three things done by Miller on April 14, 1898; first, he gave Mrs. Vincent his note for $2,000 payable to her order five years after date, with interest at six per cent.; second, he assigned the policies to her and delivered them to her; third, he executed the agreement which is above set out in full. It is not claimed that these three things were done in the order named, but that these three things done were parts of one transaction and must be construed together. The promissory note given is an important element in the matter. It gives a commercial aspect to the affair which can not be overlooked. The assignment and delivery of the policies, taken in connection with the note, which was to become due on a day fixed, is fully explained by the statement that the policies were collateral to the note. Had there been no note given, the assignment and delivery of the policies taken in connection with the written agreement could be construed as consummating and perfecting a gift. Delivery is necessary to a valid gift and realizing this counsel for Mrs. Vincent has urged strongly that the assignment and delivery of the policies to Mrs. Vincent was for the purpose of perfecting the gift; that thereby a gi^t in praesenti was made, the condition attached as to Miller’s dying first relating only to the time when the interest transferred might be enjoyed and not to its transfer.

We think the transaction should not be construed so favorably for the claim of a gift. It has been said by a judge of the Supreme Court of this state that “gifts” inter vivos, like gifts causa mortis, are watched with caution by the courts, and to support them clear and convincing evidence is required.” Flanders v. Blandy, 45 Ohio St. 108 [12 N. E. 321], The mere fact that Miller delivered the policies to Mrs. Vincent and that she had possession of them after his death, raises no presumption in favor of a gift. Nor is the testimony introduced as to the relation of the parties and the statements made by Miller at the time “clear and convincing proof” that these policies were assigned and delivered to Mrs. Vincent with the intention that thereby he completed a gift in praesenti to her. The intention to make a gift requires no such oral testimony to prove it; it is shown by the writing. The point in controversy is whether a gift really was made and fully consummated. All the evidence must be considered. The loan of money, the giving of a note and the statement in the agreement itself that Miller “as collateral security has assigned the following life insurance policies to Mrs. Ida M. Vincent,” has more convincing'force with us than such statements of witnesses and we conclude that in this case there has been a failure to prove that the delivery of the policies was a delivery of a gift.

This conclusion is further warranted by the language of the agreement, bearing in mind all the time that Mrs. Vincent held Miller’s note. Upon this view of the matter we adopt the contention of counsel for the administrator, which is as follows:

The meaning of the contract is that Mrs. Vincent loans $2,000 to Miller; he gives her his note therefor and pledges the policies as collateral security for the payment of the note. Then, intending to give her the policies, Miller adds that if he dies first she shall have them. To this business transaction a gift was added, but to make the gift, Miller adds in the contract that if he dies first “the policies shall be hers.” The very nature of the transaction is such that he could have no other intent than to make her a gift at the time of his death. The contract gave to Mrs. Vincent the legal title to the policies and left Miller the equity of redemption and the provision in regard to her having the policies at his death was simply to transfer to her his equity if the debt was not paid prior to his death. There was no present giving of the policies; the language of the agreement looks entirely to the future. Being a promise to give and not a gift in praesenti, and the promise to be fulfilled at the donor’s death, it is testamentary in character and void. Basket v. Hassell, Supra.

Having reached this conclusion with reference to the claims urged by counsel for Mrs. Vincent, it is unnecessary to consider the questions raised by the administrator as to the rights of creditors of Miller’s estate. There being no valid gift to Mrs. Vincent, the fund in controversy should be paid over to the administrator, and decree may be drawn accordingly.

Judgment for defendant, Norton T. Horr, administrator.

Hale and Marvin, JJ., concur.


author: HALE, J.

text:
    CUSTOM OR USAGE
    [Cuyahoga (8th) Circuit Court,
    February 16, 1903.]
    Hale, Marvin and Winch, JJ.
    Cheboygan Dredge & D. Co. v. L. P. & J. A. Smith, Etc.
    Custom among Contractors Admissible.
    In an action brought by a subcontractor to recover an amount claimed to be due under a written contract, parol evidence of a custom among contractors by which the subcontractor assumes the burden of providing board, conveyances, etc., for agents, engineers and surveyors of the one for whom the principal contractor is doing the work, is admissible in evidence, not to vary the written contract, but to explain the surrounding facts and circumstances under which the contract was made.

      A. W. Lamson, for plaintiff in error.

      Goulder, Holden <& Masten, defendants in error.
   HALE, J.

On December 31, 1892, tbe-defendants entered into a contract with the United States, whereby they undertook to excavate a ship channel of a certain depth, at the mouth of the Detroit river. The contract contains specific specifications as to the work to be done and the manner in which it was to be done, and, among other things, contains the following:

“The order of the work will be determined by the United States agent in charge, and his instructions shall be observed by the contractor and his employees. When required by the U. S. agent in charge, the contractor shall, without additional compensation, furnish all necessary labor, materials and appliances for placing and replacing suitable stakes and buoys for use in making surveys'for estimates, and for marking the channel. He shall also, without additional compensation, furnish the use of a tug when needed for towing the sounding rafts or scows, conveying engineers, inspectors, and other employees of the United States, and generally for -all purposes connected with the inspection and supervision of the work. When required by the U. S. engineer in charge, all agents or inspectors of the United States employed on or about the work shall have meals and sleeping accommodations furnished by the contractor at a reasonable price, approved by the U. S. engineer in charge, and paid for by the United States. ’ ’

On or about March Í5, 1894, the defendants entered into a contract with the plaintiffs as follows:

“Memorandum of Agreement Made this 15th day of March, A. D. 1894, by and between L. P. & J. A. Smith, party of the first part, and the Cheboygan Dredge & Dock Co., party of the second part.
“WITNESSETH: That the party of the second part hereby agrees to dig and remove, for the said party of the first part, 350,000 cubic yards of material from what is known as Bar Point, being ‘the Eighth Section of the Ship Channel 20 and 21 feet deep, connecting waters of the Great Lakes between Chicago, Duluth & Buffalo. ’ The aforesaid excavation is to be made in conformity with the contract said party of the first part have with the United States Government under date of December 31, 1892, for the excavation and removal of material from said eighth section of said ship channel.
“Said party of the second part is to commence digging on or before the fifteenth day of May, 1894, and to continue working with at least one dredge, until the whole quantity herein specified has been excavated in accordance with the afore-mentioned contract.
“For the above work party of the first part is to pay the party of the second part at the rate of sixteen (16) cents per cubic yard, scow measurement. Said payments to be made in accordance with the estimates furnished by the United States Government, and as soon as said party of the first part receive pay for same.
“Party of the second part hereby agrees to abstain from doing any work in Cleveland or vicinity, and further, agrees to abstain from assisting anyone else, to do any work in Cleveland or vicinity. ,
“In Witness Whereof, we have hereunto set our hands and seals the day and year first above written.
“L. P. & J. A. Smith,
“The Cheboygan Dredge and Dock Co.,
“By Conrad Starke."

This action was prosecuted in the court of common pleas by the plaintiff in error to recover of the defendants a sum claimed to be due it under this last contract and for work performed thereunder.

The defendants in error denied that there was any amount due the plaintiff at the time of the commencement of the action. The real controversy between the parties was, whether or not the plaintiff in error should bear its proportion of the expenses provided for in the specifications above quoted, which the defendants in error agreed, in its contract with the United States, to bear. The contract between the plaintiffs and the defendant did not specifically provide upon that subject, and, on the trial, evidence was offered, and permited to go to the jury over the objections of the plaintiff in error, tending to show a custom between contractors and sub-contractors to the effect that the subcontractor should bear the proportion of such expenses which the work performed by the sub-contractor bore to the entire work to be done.

The bill of exceptions does not contain all the testimony offered on the trial. It is insisted, however, that the court erred in permitting this testimony to go to the jury: first, on the ground that no custom was pleaded by the defendant; and second, that a contract can not be varied or added to by the proof of such custom. For the purpose for which this custom was sought to be established by the evidence, it is quite clear that it was not essential that it be pleaded. It is also clear that if its purpose was simply to vary or add to the written contract, it would be incompetent; but such was not its purpose.

It was competent to bring before the jury the circumstances surrounding the parties and the conditions under which the contract was made, and to enable the jury to rightfully interpret the contract signed by the parties1.

Without attempting to recite the authorities cited by the parties upon this proposition, most of which have been reviewed by us, we hold that this testimony for the purposes for which it was offered, was competent and'that there was no error in its admission. Possibly, some of the questions submitted were somewhat objectionable, but, in that regard, we see no substantial error for which the judgment should be reversed. These results apply to all objections made to the testimony offered upon this subject.

; . There was no substantial error for which the judgment should be reversed, in the rulings of the court upon the admission or exclusion of evidence and, if this evidence was competent, the charge of the court was unobjectionable and fairly covered the issues submitted upon this point.

Whether the testimony offered and permitted to go to the jury, was sufficient to establish the custom claimed by the defendants in error with such certainty as to be available to them, is not now before the court, as the bill of exceptions does not contain the entire testimony.

There was no error in giving to the defendants in error under the issues, the opening and closing of the case on the trial.

This ease has been twice tried before the court of common pleas, with the same ruling of the trial court as to the competency of this evidence; and even if it were doubtfully competent, we believe it better that this should be determined finally by the Supreme Court before further expense is made in the trial of the case.

It would seem that the whole merits of the case turn upon the proposition made, and the rights of the parties will be finally determined when the Supreme Court has settled the competency of this testimony.

The judgment of the court of common pleas is affirmed.


author: WXLDMAN, J.

text:
    CONTRACTS
    [Sandusky (6th) Circuit Court,
    April 19, 1912.]
    Wildman, Kinkade and Richards, JJ.

      Bellevue Farmers Grain Co. v. Simon Fronizer, et al.
    1. Proof Clear and Convincing Prerequisite to Waiver of Written Contract.
    In an action for recovery of the balance of the contract price for construction of a grain elevator, under a contract which provided that no claims should be made for extra work unless such work was done in pursuance of a written order from the party for whom the work was being performed, a claim for extras having been asserted, based on a request for such extras and their being furnished under circumstances which evidenced an expectation of payment, it is error to refuse a special charge, requested before argument, to the effect that waiver of the condition of the contract as to extras can only be shown by evidence so clear and convincing as to leave no reasonable doubt with reference thereto.
    2. Indemnity Clause to Builder of Elevator Construed as Warranty and Compliance with Contract Terms as to Material not Sufficient.
    The provision in said contract to the effect that the contractors should indemnify and save harmless those for whom the elevator was being constructed from any injury or damage by reason of failure of the elevator or its equipment to be serviceable for the purpose intended, constituted an express warranty, and wlien read in connection witk other provisions of the contract is not open to the construction that, if the material used and work done were in accordance with the plans and specifications agreed upon before the work was undertaken, the contractors would be relieved from responsibility for any failure of the elevator to serve the purpose intended.
    3. Damages for Failure to Structure within Time Prescribed.
    It is erroneous, in such a case, to direct the jury to allow no damages for failure fo complete the structure within the time specified, if the defendants by acts, conduct or statements extended the time, without regard to the extent to which plaintiffs were delayed in their work by such acts, conduct or statements.

      Allen Aigler and Jesse Vickery, for plaintiff.

      Kinney, O’Farrell <& Rimelspach and Parkhurst & Vickery, for defendants in error.

       Affirmed, no opinion, Fronizer v. Bellevue Farmers Grain Co., 90 Ohio St. 446.

   WXLDMAN, J.

The defendants in error sued in the court of common pleas as the surviving members of a partnership which formerly included' said defendants in error and one M. W. Hunt, now deceased. They asked judgment against the plaintiff in error for the balance of a contract price for the construction of a grain elevator, and for certain extras for work and materials rendered and furnished by them in connection with said structure. The elevator was constructed under a written contract and a supplement thereto, the original bearing date of June 1st and the supplement June 23, 1909. The defendant, which was an incorporated association of farmers, filed an answer and cross-petition asserting various matters of defense and counter-claim, and asking affirmative relief in the way of damages.

The essential points of the controversy between the parties may be' succinctly stated as follows:

The plaintiffs assert full performance of the contract on 'their part, and allege $2,994.79 as a balance on the contract price and for said extras. The defendant denies the performance of the contract, alleges numerous defects of construction, and asserts by way of defense as against the claim for extras that no order for said extras in writing was ever made by the defendant, as required by the written contract in the following terms:

“All necessary expenses are provided for by the amount contracted hereby to be paid said party of the first part, so that said amount will cover the entire cost to said party of the second part. No claims for extra work shall be made unless the same be done in pursuance of a written order from said party of the second part and given to said party of the first part prior to the doing of said extra work, or the furnishing of extra materials.”

The principal claims asserted by the defendant by way of counter-claim are upon an alleged warranty, embodied in the written contract, and a stipulation that the entire work of construction should be performed between the date of the contract and,August 31, 1909. As stated in the plaintiff’s petition, the building was not in fact completed and ready for operation before December 6 of that year. The contract contained a provision that for any delay not due to certain specific causes beyond the control of the contractors, after the stipulated date of completion, the defendant company should be entitled to $10 for each day during such delay as liquidated damages. The total amount of damages claimed by the defendant was $4,890, for which the defendant asked judgment.

The ease was tried to a jury and resulted in a verdict for the plaintiff below in the sum of $2,725.95. The record brought up to us is a very long one, embodying about 1,000 pages of evidence in the bill of exceptions, and numerous claims of error are made. It is claimed that the verdict is not sustained by this evidence, but our attention has been called to the fact that although the certificate of the trial judge asserts that the bill contains all the evidence, it lacks a written exhibit which appears to have been offered and received, and for that reason we are not attempting to pass upon the weight of the evidence. It does not appear that this exhibit is not material to such inquiry.

Among the numerous claims of error are a few which seem to demand especial attention by reason of their importance, and the fact that especial emphasis has been placed upon them in argument. I have already referred to the requirement of the contract as to written orders for extras. The plaintiff contends that although no written orders were given, these extras were requested by the defendant and furnished under such circumstances as to evidence an expectation of payment. In view of the evidence bearing upon this point, at its close and before argument, the defendant among other requested instructions asked the court to give to the jury instruction No. 10, which I read:

“You are instructed that in order for the plaintiff to recover for any extras save and excepting those expressly admitted by the defendant in open court, the plaintiffs must show that the condition in the contract providing that 'No claims for extra work shall be made unless the same be done in pursuance of a written order from said party of the second part and given to said party of the first part prior to the doing of said extra work, or the furnishing of extra materials,’ has been waived by the defendant and the plaintiffs must prove the waiver of the condition by such clear and convincing evidence as to leave no reasonable doubt about the waiver.”

This instruction the court refused to give. It is our view that the defendant was clearly entitled to this instruction before argument, and that it should have been given, pursuant to Ashley v. Henahan, 56 Ohio St. 559 [47 N. E. 573], The refusal of the court to give it was reversible error, and was not cured by the giving of a portion of it, in substance, in the general charge. That the action of the court may have resulted in prejudice is indicated by an express special finding of the jury that a part of their verdict to the amount of $316.91 was for extras in excess of such as were admitted by the defendant.

The written contract sued upon contained the following language:

‘ ‘ Said party of the first part shall indemnify and save harmless said party of the second part from all injury and damage by reason of any failure of said steel elevator or equipment thereof to be serviceable for the purposes intended, to-wit, the economical receiving, handling and shipping of grain.”

This paragraph, with certain other expressions in the contract, and an indemnity bond executed in connection with it, constituted, under our construction, an express warranty, and as such was not affected by the fact that'work was to be done and materials, were to be furnished by the contractors pursuant to certain plans and specifications agreed upon by the parties. The defendant contends that it is an association of farmers, unskilled in the construction of such an elevator, and that they made the contract in reliance upon assurances of the contractors that the structure, when completed pursuant to said plans and specifications, would be serviceable to the extent and in the way expressed in the contract. Incidental to this matter are certain claimed errors in the refusal of the court to permit oral evidence of conferences before and after the execution of the contract, between a director of the defendant company and some representative of the plaintiffs. We incline to the view that the holding of the court in excluding this evidence was correct, for the reason that the contract spoke for itself, and it needed no reinforcement of this character. The parties were presumed to enter into the contract in reliance upon its terms. The court, however, throughout the case seems to have adopted the contention of plaintiff’s counsel, holding that if the plaintiffs constructed the building pursuant to the plans and specifications and the other express terms of the contract, it was of no consequence whether the elevator proved serviceable for the purposes intended and expressed. This is especially illustrated in the giving of plaintiff’s requested instruction No. 3, and in various expressions in the general charge. Without quoting this instruction, or these expressions, it is sufficient to say that we think that the court fell into an error in this regard. Before entirely leaving this subject I should mention that the written contract between the parties contained a provision as follows:

‘1 The whole of the work provided for in these specifications must be done to the full satisfaction of, and final acceptance by said party of the second part. ’ ’

It is essential that this stipulation should not be overlooked in any consideration of the questions involving a performance on the one side and acceptance on the other. Little, if any, force seems to have been given to this important and not unfamiliar clause in building contracts in the court’s definition of the rights and obligations of the parties. Indeed, as shown on page 1008 of the bill of exceptions, the judge said to the jury that even if it is a fact that the company never did accept the elevator, that fact—

“will not defeat the right of the plaintiffs to recover, if you further find that the plaintiff’s firm completed said work, in substantial compliance with the contract in question in this case; if it did, it is entitled to recover the contract price.”

In other parts of the charge this stipulation in the contract seems to have been overlooked. Before argument, an instruction, No. 5, asked by the defendant, which bears on this matter, was refused. This instruction reads as follows:

“The contract between the parties to this action provides that ‘the whole of the work provided for in these specifications must be done to the full satisfaction of, and final acceptance by said party of the second part,’ and before the plaintiffs can recover in this action they must show that they have completed the construction of this elevator and the equipment substantially in accordance with the plans and specifications, unless they show that said building was accepted by said defendant. ’ ’

We think that it embodied in substance a correct proposition and should have been given.

Among the instructions asked by the plaintiff and given before argument is No. 5, as follows:

“I say to you as a matter of law, that the defendant had the right to extend the time for the performance of the contract, and waive the requirements therein as to time, and that the same need not have been in writing; and should you find from the evidence that the defendant did extend the time for the performance of said contract, either by acts, conduct or direct statement, made to the plaintiffs, or by the ordering and directing of extra work to be done by the plaintiffs or their sub-contractor, not provided for in the contract, then defendant can not recover anything by way of damages for a failure to have said contract completed within the time specified in said contract. ’ ’

This instruction was clearly erroneous, as directing the jury to allow no damages for failure to build the structure within the time specified in the contract, if the defendant by acts, conduct or statement extended the time at all, without regard to the extent to which the plaintiffs were delayed in their work by such acts, conduct or statements. •

Instruction No. 3 asked by the defendant was one to which we think the defendant was entitled, and that the court erred in refusing it. The same is true as to instruction No. 7, which called attention to the express warranty in the written contract.

We might dwell further upon the general charge of the court, which in some respects seems to us to be possibly mis'leading, but the errors to which attention has been expressly called seem to us so vital as to require a reversal of the judgment of the trial court; and we are not disposed to enter into unnecessary criticism of a charge, most of the features of which are entirely in accordance with the law. I will say here that the case was sufficiently complicated and the questions sufficiently difficult to make the framing of the instructions equally so.

Upon another trial the corrections of any errors of minor character, and dependent, to some extent, upon those to which attention has been called, will readily be made without special mention of them in this opinion. We might suggest the query whether before the retrial there should not be some remodeling of the pleadings to avoid further possible error, in view of the fact that there is no express averment in the petition or reply of waivers of the requirements of the contract as to extras and delay in construction. The petition alleges performance of the contract — not waiver or modification of its obligations; and it fails to allege any express contract for extras, or promise of payment therefor.

The judgment of the court of common pleas will be reversed and the cause remanded for a new trial, and further proceedings according to law.

Kinkade and Richards, JJ., concur.


author: CALDWELL, J.

text:
    PLEDGES
    [Cuyahoga (8th) Circuit Court,
    December 22, 1900.]
    Marvin, Caldwell and Hale, JJ.
    Merchants’ Banking & Storage Co. v. Sarah M. Ryder.
    1. Duty of Pledgee to Obtain Highest Price for Pledged Articles at Private Sale.
    When the pledgee of personal property sells the pledged articles at private sale, he acts as agent of the pledgor in making the sale, and it is his duty to exhibit the articles in such a manner as to attract buyers and use all other reasonable methods of obtaining as nearly as possible what the articles are reasonably worth.
    2. Private Sale of Pledge at Price Greatly below Value Imputing Negligence.
    When the pledgee of personal property sells it at private sale for a sum much less than the actual value of the property, the discrepancy in price may he so great as to establish want of care and neglect of duty on his part and make him liable in damages for the difference between the selling price and the actual value.

      M. R. Solloway, for plaintiff in error.

      Foster <& Foster, for defendant in error.
   CALDWELL, J.

The defendant in error, Sarah M. Ryder, pawned some diamond ear-rings with the plaintiff in error, the Merchants’ Banking & Storage Co., and obtained upon them $147, for which she gave a note of $150.

A card was given her at the time, which she accepted and retained, and on Avhich she- waived notice of the sale and waived publication of sale, and authorized a private sale. The obligation became due and was not paid; the interest was not kept up; and, after statutory period, a private sale was made. The diamonds were sold for $195, and the pledgor brought this action to obtain the full value of the diamonds, less what she owed the bank.

Many exceptions were taken to the evidence upon the trial of the case, and exceptions were taken because the court refused to charge as requested by the storage company. These exceptions to the evidence, and the exceptions to the court’s refusal to charge, were largely due to the fact that the case was tried on a different theory from that presented by the petition; that is, the attorney for the storage company took it that this was for a conversion of the property and as though Mrs. Ryder was trying to reclaim the property; but that was not the action.

It was recognized as a fact all the way through, that the storage company had proceeded as it was authorized to do, in proceeding without notice to her to sell, and proceeding to sell at private sale.

The only question involved in the case was, whether the storage company, because of the manner of conducting the sale, was so negligent and careless in the sale of this property, that it obtained much less than its real value, and that the' evidence of that discrepancy would, in and of itself, show carelessness and negligence.

The title to pledged property remains in the pledgor; the pledgee gets a lien upon the property. When the pledgee makes a conversion of the property, if that is unlawful the pledgor may treat it as no disposition of the property and may proceed against the pledgee. That is one remedy that the pledgor may have; or the pledgor may proceed simply for damages for nonperformance of the duty owed to the pledgor by the pledgee.

Complaint is made in this case that the pledgee of the property made no reasonable effort to obtain purchasers for this property when it was for sale; that it was kept in a desk, in a box, and was exhibited to no one who was there for the purpose of making purchases except those who might inquire for property of that kind.

The authorities show clearly that the pledgee can not excuse himself in making a sale of this character unless he uses that diligence that persons who generally sell that class of property use. If it becomes necessary to advertise to call the attention of persons who purchase that class of property, notifying them that the property is for sale — all these things are what merchants do; and merchants always expose that class of property in showcases; they do not hide it away as a rule; at least, they keep some part of it where it can be seen, and where persons looking for purchases of that sort, may see it. None of these things were done on the part of the company.

Now, in the sale of pledged property, the pledgor still remains the owner, and the pledgee becomes an agent to sell, and the authorities state his dtuy pretty clearly in saying that his duty is that of a prudent executor in making a disposition of the property in his hands as trustee. The duty of the agent is measured by many authorities by that rule, and, if he falls short of that, he has not met his obligation to the bailor.

The evidence in this case shows that this property was sold for $190; and while experts as to the value of diamonds, some called by one side and some by the other, testified in this case, there was no expert called who did not place the value of this property at considerably more than was obtained for it; even the very lowest by either side places it considerably higher.

The only question in the case is, whether it was sold so much below the market value of the property that it would warrant the court in saying that there was negligence on the part of the agent or pledgee. That is really the only question there is in the case. Some authorities have said that that discrepancy must be so great as to show an intentional injury. That was, many years ago, the rule of some of the courts. I do not find that it is the rule of the present day at all. But, as I have said, it is put on the ground of agency; and, if the testimony shows that the agent was careless and negligent in obtaining what he might have had for the property, that is, what the market would have warranted for such property, then he is liable for such carelessness and negligence.

We have figured this matter over, taking the figures of the experts, and have examined it carefully, and we can not say that the jury were far out of the way; the evidence would warrant them in giving the verdict they did, and we see no other way, under the rule in such matters, than to affirm this judgment.

Marvin and Hale, JJ., concur.


author: CROW, J.

text:
    APPEAL
    [Allen (3rd) Court of Appeals,
    November 4, 1915.]
    Kinder, Crew and Ansberry, JJ.

      State Liability Board of Awards et al v. Newton Snyder.
    No Appeal Lies to Award by Industrial Commission.
    Under the act 102 O. L., 524, when an award has been made upon the application of an injured employe, appeal does not lie from the board’s action in the matter of determining the amount or amounts of such award.

      Eugene Carlin and J. J. Weadoelc, for plaintiffs in error.

      T. B. Hamilton, for defendant in error.

      Affirmed with opinion, Snyder v. State Liability Board of Awards, 94 Ohio St. 342.

   CROW, J.

Defendant in error was injured in the course of his employment while in the service of the Lima Locomotive Corp., which had complied with the laws of this state relative to workmen’s compensation insurance.

The accident occurred January 18, 1913. Subsequently he made application to the state liability board of awards, which took cognizance of the same, and on May 14, 1914, by warrant on the state treasurer, disbursed the sum of $181.71 to the claimant. On the same date, by a like warrant, the amount of $18 was paid to the attending physician, whose verified report was filed by plaintiff in support of his said application. On May 26, 1914, by a warrant similar to the above, the sum of $19 was paid to claimant. This warrant appears to have been issued to cover hospital charges incident to plaintiff’s injuries. No further payment was made to plaintiff below nor on account of the accident to him.

On September 25, 1913, the claimant caused a notice of appeal to be served on the prosecuting attorney of Allen county, Ohio (the counts’- wherein his injuries were incurred), from the action of the board, and on October 24, 1913, filed his petition in the court of common pleas of said county, against said board and the industrial commission of Ohio.

In said notice of appeal and petition, the claimant set forth the nature of his employment, the compliance by said employer with the provisions of the workmen’s compensation law of Ohio, the date he sustained said injuries, the nature of the latter, the circumstances attending the accident to him, the fact that he had made application to the defendant state liability board of Awards, the cognizance of said application by said board, the election of plaintiff to accept under the provisions of said laws, the incapacity of plaintiff from following his usual vocation, and that in the month of August, 1913, said board absolutely rejected his claim without right or authority and refused to make payments in compliance with the laws above referred to.

The ease was submitted to a jury, who returned a verdict in favor of plaintiff below. Judgment was rendered on the verdict, and by this proceeding in error it is sought to reverse said judgment.

The bill of exceptions does not contain the record of proceedings of the board in the matter of plaintiff’s claim.

It does appear, however, from a letter dated June 21, 1913, in answer to one from claimant, dated the 19th of that month, that the chief clerk of the board informed claimant that his claim would come up for further consideration by the board within the next few days and that he would be promptly advised as to the further disposition of it. The contents of said letter from the claimant are not disclosed.

And it further appears, by a letter dated August 26, 1913, from the chief medical examiner of the state liability board of awards, to the attorney for the claimant, in answer to a letter from the latter that on August 11, 1913, “The board acted on the case, August 11, and considered that no further compensation was due,” and that “the case was closed.”

Between August 26, 1913, and the commencement of plaintiff’s said action he made no further application to the board.

As already stated, the record under review does not show the proceedings of the board, excepting as they may be gathered from the evidence of the plaintiff, the warrants (which were paid to the payees), the letters above referred to, and the evidence of the chief medical examiner.

While the date does not appear with entire clearness, the fact is that subsequently to the receipt of the warrant by plaintiff for the $181.71, the chief medical examiner made a personal examination of the claimant at his home in Lima, Ohio. He testified that he was not requested to make the examination but did so of his own volition under a rule of the board requiring such action in ‘ ‘ difficult cases. ’ ’ His evidence further shows that the payments by the two warrants above mentioned, to the claimant, were based upon plaintiff’s application, the verified report of his attending physician, and the report of the board’s local physician. And from the testimony of the witness it appears that upon his report, the board, on August 11, 1913, took the action set forth in his letter of August 26, 1913.

The controlling question in the case depends on the construction of Sec. 36 act 102 O. L. 524 Sec. 1465-75 G. C., and related sections.

Plaintiff in error contends that because the claimant participated in the insurance fund, the court below was without jurisdiction to entertain plaintiff’s appeal and petition.

Defendant in error insists that there was no “final action” on the claim until the step taken on August 11, 1913, which was the denial of the right of the claimant to further participate.

Viewing the language of See. 36 alone, the position of defendant in error does not seem to be without foundation. The pertinent provisions of that section are as follows:

‘1 The board shall have full power and authority to hear and determine all questions within its jurisdiction, and its decision thereon shall be final.
“Provided, however, in ease the final action of such board denies the right of the claimant to participate at all in such fund on the ground that the injury was self-inflicted or on the ground that the accident did not arise in the course of employment, or upon any other ground going to the basis of the claimant’s right.” * * *

But in the interpretation of the meaning of the words “final action,” resort must be had to the context of the law, the dominant purposes of which are to lodge in the board the power of accumulation of the fund, and its distribution (within the limits prescribed) among those for whose benefit it is created.

. Within the scope of these purposes it is the obvious intent of the legislation to make the board supreme, but there is no such manifest purpose, so far as concerns the determination of the status of eligibility of one who seeks to become a beneficiary.

The act would be lacking in vitality if the arbitrary power were sought to be conferred upon the board, of determining who might or might not be proper recipients of the relief provided by the legislation. A provision must of necessity have been made whereunder a person amenable (as plaintiff below was) to the law, should have “his day in court,” on the question of his right to participate in a fund to which alone he would be compelled to look for redress. " .

Section 33 of-the act, now Sec. 1465-72 G-. C., declares the power and jurisdiction of the board over each case to be continuing, and that it may from time to time make such modification of, or change in, its former findings or orders with respect thereto, as, in its opinion, may be justified.

In the light of this section and of the general language of the remainder of the act, what can properly be said to have been in legislative contemplation, by the employment of the words “final action” in Sec. 36, in its relation to the subject of the section, namely, the right of participation at all in the fund?

The construction urged by defendant in error would confine the term “final action” to the latest step taken by the board, rather than to the jurisdictional determination by it.

Section 1465-75 G. C. by its own unambiguous language, declares in the board full power and authority to hear and determine all questions within its jurisdiction, and makes its decision final thereon.

Of course, the jurisdiction of the board in any case depends on the eligibility of the claimant to participate to any extent in the fund;

In view of the purpose sought to be accomplished by the act, the means and methods of such accomplishment, and of the language of all the remainder of the act, the conclusion seems inevitable that the words “final action” relate solely to the matter of determination of the right to share in the accumulation resulting from the collective premiums.

From the denial of such right, the claimant may appeal, and upon proceedings thereunder, that question shall be adjudicated by the law of the land, and all other matters, properly in controversy, be therein disposed of.

Consequently, when a claimant invokes the provisions of the legislation, and after determination in his favor fixing his status of eligibility to participate, the amount of allowance made by the board can not be reviewed by way of appeal to the courts.

The power and jurisdiction of the industrial commission still exist over the subject of claimant’s injuries, but the question of the extent of the relief awarded by it or its predecessor has not, by any provision of existing statutes, been made reviewable by judicial proceeding.

Kinder, J., concurs.

Ansberry, J., not sitting.


text:
    CRIMINAL LAW
    [Hamilton (1st) Court of Appeals,
    February 20, 1915.]
    Jones, Jones and Gorman, JJ.
    Samuel Stryk v. State of Ohio.
    Service on Attorney for Prosecuting Witness Insufficient to Bring State into Court in Error Proceedings in Misdemeanors.

      In the prosecution of error proceedings in an action hy a wife against her husband for failure to provide for their minor child, service of summons in error upon the attorney representing the wife or waiver of service by him does not give the reviewing court jurisdiction, and the state can be brought into court only by service on or waiver of service by the prosecuting attorney or some one duly authorized by him to act in that behalf.

      Marry Mess, for plaintiff in error.

      Jos. L. Meyer, for defendant in error.
   GORMAN, J.

Prosecution was commenced in the municipal court of Cincinnati against the plaintiff in error Samuel Stryk by his wife charging him with failure to provide under the statute. The affidavit charging the plaintiff in error with the violation of the statute was filed in the municipal court on August 3, 1914, and therein it charged the said Stryk with the violation of Sec. 12970 G. C., which in substance provides that whoever having the control of or being the parent or guardian of a child under the age of sixteen years abandons such child * * * or negligently fails to furnish it necessary and proper clothing and shelter, shall be fined not less than ten dollars or more than two hundred dollars or imprisoned not more than six months, or both. Therefore it will be seen that the offense charged was misdemeanor.

Upon the trial in the municipal court the plaintiff in error, Stryk, was found guilty and ordered to pay to the Ohio Humane Society the sum of eight dollars per week for the proper support of his minor child, Ester Stryk. Motion for a new trial was made, and overruled, and a bill of exceptions was prepared, filed and signed in due form by Judge Bell of the municipal court. A petition in error was thereupon prepared by counsel for plaintiff in error, the caption of which was “Court of Appeals, Hamilton county. Samuel Stryk, Plaintiff in Error, v. State, defendant in error.” The petition in error was signed by Mr. Hess, counsel for plaintiff in error, and duly verified by plaintiff in error, Samuel Stryk.

It appears that before the petition in error was filed with the clerk of the court of appeals a waiver was signed, upon the back of the petition, as follows: ‘ ‘ The defendant in error by the prosecuting attorney, Joseph L. Meyer, hereby waives the issue and service of summons in error in the above entitled action, and enters appearance therein. State of Ohio, by Joseph L. Meyer, Attorney.” "When the petition in error was brought to the court house by counsel for plaintiff in error, he learned that error would not lie from the municipal court to the court of appeals, and he thereupon changed the caption of his petition in error by striking out “Court of Appeals” and substituting therefor “Common Pleas Court of Hamilton county, Ohio” and filed the petition in error together with the transcript of the docket and journal entries and original papers of the municipal court, with the clerk of the court of common pleas, leave having been given to file petition in error by one of the judges of the court of common pleas. There was also filed with the papers an acknowledgment by Joseph L. Meyer as attorney for the state of Ohio, of the notice of the filing of a petition in error, but this notice was also captioned “Court of Appeals” and before filing it with the clerk was changed to “Common Pleas Court of Hamilton county” and the record discloses that Mr. Meyer was not apprised of the change in the caption of the petition in error or the acknowledgment of the notice of filing petition in error.

The case came on to be heard in the court of common pleas, and various motions were made to dismiss the error proceeding on the ground that the state of Ohio, the defendant in error, was not properly in court, not served with summons in error or a waiver. The court of common pleas overruled all the preliminary motions, and upon hearing affirmed the judgment of the municipal court, and error is now prosecuted from the court of common pleas to this court seeking to reverse that judgment.

In this court there was filed with the petition in error a transcript of the docket and journal entries of the common pleas court, together with all the original papers and transcript of the docket and journal entries and the bill of exceptions from the municipal court.

Upon the filing of the petition in error in this court on December 23, summons in error was issued directed to the sheriff of Hamilton county, commanding him to notify the state of Ohio that the plaintiff in error had filed a petition in error in this court. This summons in error was served upon Joseph L. Meyer as attorney for the state of Ohio. When the case was argued in this court by counsel for plaintiff in error and Joseph L. Meyer, suggestion was made to the court that there was no jurisdiction to hear and determine this case because the state of Ohio had not been served with summons in error, nor was there a waiver of service on the part of the state of Ohio.

The legislature, in February, 1914 (104 O. L., 187), among other things amended the act creating the municipal court of the city of Cincinnati so as to confer jurisdiction on the common pleas court to hear and determine proceedings in error prosecuted from the municipal court, whereas theretofore the original act provided for the prosecution of error to the court of appeals of Hamilton county. The act creating the municipal court of the city of Cincinnati together with the amendments thereto, provides the method of prosecuting error. Section 26 of act 104 0. L. 187 among other things provides that proceedings in error may be taken to the court of common pleas of Hamilton county from a final judgment or order of the municipal court of Cincinnati in the same manner and under the same conditions as provided by law for proceedings in error from the court of common pleas to the court of appeals of Hamilton county. * * * The review of all cases other than civil actions and proceedings shall be had in the manner provided for review of actions and proceedings in which a judgment for more than three hundred dollars has been granted.” By the provisions of the sixth section of the original act creating said court (103 O. L., 280), a municipal court is given jurisdiction in criminal matters and prosecution for misdemeanors or violation of ordinances as heretofore had by the police court of Cincinnati. By Sec. 8 of act 103 O. L. 281, it is provided that municipal court shall have jurisdiction of all misdemeanors and of all violations of city ordinances of which police courts in municipalities now have or may hereafter be given jurisdiction. And again, by the provisions of Sec. 13 of said act, it is provided that in all criminal cases and proceedings the practice and procedure and mode of bringing and conducting prosecutions for offenses, and the powers of the court in relation thereto, shall be the same as those which are now, or may hereafter be, possessed by police courts in municipalities unless otherwise provided herein.

It is therefore clear that the municipal court of Cincinnati had jurisdiction of this prosecution and that the methods of procedure should have been the same therein as theretofore had in the police court of the city of Cincinnati.

By the provisions of Secs. 4306 and 4307 G. C., the city solicitor shall be the prosecuting attorney of the police court, and shall prosecute all cases brought before that court, and as far as they are applicable thereto, perform the same duties as required by the prosecuting attorney of the county. He may designate one of his assistants to act as prosecuting attorney of the police court.

It would therefore appear that ample provision has been made for the prosecution of misdemeanors and crimes in the municipal court of the city of Cincinnati by virtue of the foregoing provisions referred to, which in substance provide that the procedure, methods and practice had in the police court shall be the same in the municipal court; and it was therefore the duty of the prosecuting attorney of the police court or the solicitor or assistant solicitor of the city of Cincinnati to attend to this prosecution. While there might be no objection to the attorney for the prosecuting witness appearing and assisting, nevertheless the law does not recognize such an attorney as representing the state. There was no power or authority in Joseph L. Meyer to appear on behalf of the state, or to represent the state of Ohio either in the municipal court or the court of common pleas, nor yet in this court, as will be seen by reference to the statute.

The court is therefore of the opinion that the state of Ohio was not before the court of common pleas in this proceeding in error because of the absence of the summons in error, and because of the failure of the prosecuting attorney either of the police court or of Hamilton county to waive the issuance and service of summons in error.

In any event, the waiver of Mr. Meyer of the issuance of the summons in error to the court of appeals would not be a waiver of the issuance of the service of the summons in error without his consent in the common pleas court, if the caption had been changed without his knowledge and consent, as appears to have been done. By the provisions of Sec. 13751 G. C., amended by act 103 O. L., 434, in a criminal case, including a conviction for a violation of an ordinance of a municipal corporation, the judgment or final order of a court or officer inferior to the common pleas court may be reviewed in the common pleas court.

Section 13753 G. C., provides that a proceeding to review such a judgment shall be by petition in error, to which shall be attached such transcript and any original papers received by the clerk. This same method of proceedings in error is to be pursued when error is prosecuted in a criminal case from the court of common pleas to the court of appeals.

Section 13754 G. C., provides that when such petition in error and precipe are filed in a criminal case (whether in the common pleas court or the court of appeals) a summons in error returnable in ten days shall be issued by the clerk thereof unless a judge thereof prescribe another day for such return. Such summons shall be directed to the sheriff of the county in which the judgment was rendered, and it shall contain such description of the judgment as to identify it, recite the fact that a petition in error has been filed, command the sheriff to notify the prosecuting attorney of the time it will be for hearing, and if original papers are required, command the sheriff to notify the officer in whose possession they are, to forward thorn to such clerk, etc.

Now in the case at'bar there was no summons in error issued out of the common pleas court and no service made upon either the prosecuting attorney of the county, or, if we assume that the prosecuting attorney of the municipal court dould exercise the functions of the prosecuting attorney of the county, no service was had upon him. The waiver of Joseph L. Meyer on behalf of the state of Ohio was entirely unauthorized and was not sufficient to bring the state of Ohio within the jurisdiction of the court of common pleas; so that in the opinion of the court, the common pleas court had no jurisdiction of the state of Ohio, and could not therefore proceed to hear and determine proceedings in error prosecuted from the municipal court of Cincinnati.

The same situation was presented to this court. While summons in error was issued out of this court on the petition in error, it did not require the sheriff to notify the prosecuting attorney of Hamilton county, as provided by See. 13754 G. C.; and in the opinion of this court no other person was authorized to act on behalf of the state of Ohio. The prosecuting attorney might under certain circumstances designate somebody to act on bebalf of the state. Nothing of that kind was done in this case, nor is it claimed that it was done. Joseph L. Meyer, so far as the record shows, acted merely as counsel for the prosecuting witness, Dora Stryk.

It was held by the Supreme Court in the case of Nichols v. State, 71 Ohio St. 335 [73 N. E. 220], that a prosecuting attorney may effectively waive the issuance and service of summons in error, and enter the appearance of the state by a proper endorsement for that purpose upon a petition in error filed for the reversal of a conviction for crime or misdemeanor.

Inferentially, therefore, it must be presumed that no other person, in the absence of authority in the statute, had the power or the authority to waive the issuance and service of summons in error, nor could any other person be served with summons in error. The service of the summons in error issued out of this court upon Joseph L. Meyer had no more effect in bringing the state of Ohio into this court than if the summons in error had been served upon any other stranger to the record.

In civil actions it would be held necessary to issue summons in error in order to bring the proper party before the court, unless there was a waiver. Baltimore & O. Ry. v. Ambach, 55 Ohio St. 553 [45 N. E. 719]; Andress v. Greenfelter, 29 O. C. C. 235 (9 N. S. 446); Robinson v. Orr, 16 Ohio St. 284.

We hold that the same rule should apply in criminal cases. It would appear, therefore, that this court has no jurisdiction of the state of Ohio and can not proceed to hear and determine the questions of error raised, if any, which were committed either in the common pleas court or the municipal court of Cincinnati, and the only action that can be taken in this case at this time is to strike the petition in error from the files.

The court can not say whether or not there was error in the proceedings in the municipal court, but is strongly of the opinion that the court of common pleas acquired no jurisdiction in error for the same reason that this court has no jurisdiction at this time.

The judgment of the court is that the petition in error and the original'papers and bill of exceptions shall be stricken from the files, and this the court does upon its own motion, for as we understand the law it is the duty of a court whenever it appears, at any stage of the proceedings, that it has no jurisdiction either of.the person or of the subject matter, to proceed no further with the hearing of the cause or proceeding but to strike the pleadings and papers from the files, and this it may do sua sponte.

The entry should be made accordingly.

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