author: Kinkade, J. Chittenden, J.

text:
    AS TO REMOVAL OF CIVIL SERVICE COMMISSIONERS.
    Court of Appeals for Lucas County.
    Louis H. Paine v. Carl H. Keller, as Mayor of the City of Toledo; and William E. Cordill v. Carl H. Keller, as Mayor of the City of Toledo.
    Decided, January 5, 1915.

      Civil Service — Mayor May Remove Civil Service Commissioners — Jurisdiction to Determine Title to a Public Office — Injunction.
    1. Injunction will not lie to prevent the mayor of a city from proceeding under favor of 103 O. L., 709 (Section 19, Municipal Civil Service), to remove from office -the municipal civil service commissioners, even though the petitions allege that the mayor is about to cause such removals without any sufficient charges being filed, or without any charges whatever and. without a hearing.
    2. The jurisdiction to determine the title to a public office is vested exclusively in the courts of law under procedure established by statute, and can not be interfered with by a proceeding in equity.

      Kohn, Northup, Bitter & McMahon and Franh Q. Crane, for Louis PI. Paine.

      Bay & Cordill, for William E. Cordill.

      Webster & Kirtley, for defendant.
    Richards, J.; Kinkade, J., and Ci-iittenden, J., concur.
    Appeals from orders dissolving temporary injunctions.
   These two actions are injunction proceedings brought to prevent the mayor of the city of Toledo from removing the plaintiffs as civil service commissioners of that city. They involve the same matters and, having been argued together, may be conveniently disposed of in one opinion.

In each case the plaintiff is one of the civil service commissioners of the city of Toledo. No answer has been filed in either ease, but the actions have been submitted to the court upon motions and the sufficiency of the petition in each case is questioned, the defendant claiming that no cause of action is set forth justifying’ the allowance of a temporary injunction.

It appears from the petitions that the Civil Service Commission of the State of Ohio has made and-submitted a written report to the mayor of the city of Toledo of a certain investigation relative to certain claimed violations of the civil service law by the Civil Service Commission of the city of Toledo. The petitions further allege that the defendant has served on each of the plaintiffs a copy of this written report, and they aver substantially that the defendant has announced that, because of such report, he will remove the respective plaintiffs from their offices as members of the Civil Service Commission of the city of Toledo. In the case brought by Mir. Paine he avers that neither the report of the investigators nor the report of the State Civil Service Commission makes any charge against him of inefficiency, neglect of duty or malfeasance in office on his part, and that no copy of any such charges has been filed with the defend- and, nor served upon him, and-that the defendant has not made any such charges against him. Ilis petition in short denies the making of any charges against him within the purview of the statute providing for the establishment of a civil service commission and the removal of any of its members, and he avers in the petition that the only charge made against the Civil Service Commission of the city of Toledo as a commission and contained in the report of the special investigators, is as follows:

‘ ‘ That the spirit of the civil service law has been violated in the failure of the municipal civil service commission to investigate the violations of the civil service law in said city. We believe that the spirit of the civil service law is violated in holding oral examinations of the character held in Toledo, and that positions of such importance ought not to be filled from those who pass examinations exclusively oral because there is no method of preserving the record of the actual examination, which leads to distrust on the part of the people upon the fairness of such examinations.”

In the petition filed on behalf of Mr. Gordill it is admitted that certain charges have been filed against the Civil Service Commission of the city of Toledo, but averred that none have been filed against the plaintiff himself, and it is averred that these pretended charges are as follows:

“1st. Appointments have been made to numerous important ' positions without any examinations.
“2d. That persons separated from the Service, due to the fact of the positions having been abolished, or unnecessary, have not been placed at the head of appropriate eligible list.
_“3d. That the spirit of the civil service law has been violated in the failure of the municipal civil service commission, to investigate the violations of the civil service law in said city. ’ ’

The petition further avers that none of these charges are sufficient in law to constitute a cause of action for the placing of plaintiff on trial before said defendant or for the removal of plaintiff from his office. The petition further avers that the defendant has openly and publicly stated: “That there is no question in my mind what I will do. There is but one thing for me to do. I will dismiss Cordill (plaintiff herein), Paine and McMahon.” The plaintiff alleges that the defendant is prejudiced against the plaintiff and has pre-judged his ease and threatens to remove- him on said pretended charges without a hearing.

In the action brought by Mr. Paine he prays that the defendant may be restrained from removing him from his office as a member of the civil service commission; and in the action brought by Mr. Cordill he prays that the defendant may be restrained from proceeding with a hearing on the pretended charges and from removing1 him from his office of civil service commissioner of Toledo.

It will be observed from this summary statement of the averments of the petitions that in the action brought by Mr. Paine he, in effect, avers'that the mayor is about to proceed and remove him from his office without any charges being made against him, and that in the action brought by Mr. "Cordill the ‘contention is made that the only charges which have been filed are against the Civil Service Commission of the city of Toledo as such, and not against Cordill individually, and that these charges are insufficient in law upon which to base an order of removal. The Paine case, conceding the allegations of the petition to be true, is one in which it appears that the mayor is about to act under such circumstances as would involve an entire want of power on his part to proceed; while in the other case, conceding the allegations of the petition to be true, the mayor is about to act on charges not against an incumbent of the office, but against the commission itself, and on charges which are insufficient in law.

The statute which clothes the mayor with authority to act on these matters is the act to regulate the civil service of the state of Ohio, and the particular part to which reference is made is found in Volume 103 Ohio Laws, page 709, and is known as Section 19 of the municipal civil service. The pertinent portion of that section is as follows: .

“The chief executive authority of such city may at any time remove any municipal civil service commissioner for inefficiency, neglect of duty or malfeasance in office, having first given to such commissioner a copy of the charges against him and an opportunity to be publicly heard in person or by counsel in his own defense, and any such act of removal shall be final.” The italics are not in the statute but are the.court’s..

It is contended on behalf of counsel for the defendant that injunction will not lie to prevent the threatened action of the mayor, and that is really the only question which we have for decision. We have given the matter very careful consideration and have arrived at a solution which we believe is in accordance, not only with principle, but with an almost universal current of authority.

The statutes of Ohio creating the Civil Service Commission provide the means and method for removing any commissioner who shall have been found guilty of 'inefficiency, neglect of- duty or malfeasance in office, but, under the language of the statute, such removal can only be made after the commissioner shall have been given a copy of the charges filed against him and an opportunity to be publicly heard in his own defense. The duty of passing upon the charges which may be made must be vested by the General Assembly in some person or body,' and by the act from which the quotation has just been made, the General Assembly has seen fit to vest that power in the mayor. Under the fundamental principles of law, if the mayor should attempt to proceed without any charges being filed, or upon charges that are insufficient in law, his action could not be restrained by a court of equity if the law provides any other adequate remedy.

In the ease of Kerr v. Hinkle, as mayor of the city of Columbus, 12 O. D., 365, Judge Bigger of the Court of Common Pleas had under consideration matters very similar to those involved in the present action and he reached a conclusion, supported by an array of authorities and unanswerable reasons, that an action of injunction could not be maintained.

In re Sawyer et al, 121 U. S., 200: It appeared in this case that the mayor of the city of Lincoln was about to remove the police judge, and the Supreme Court of the United States, after an extended examination of the authorities, announced the doctrine that a court of equity had no jurisdiction of a bill to restrain the removal of a public officer.

It is stated in 22 Cyc., 886, that the general rule is that equity will not enjoin the removal'of public officers where the power of removal is vested in executive or administrative boards or officers or is entrusted to a judicial tribunal, and that it is immaterial that the appointee is within the protection of the civil service rules. That general rule has been followed'in this state ever since the establishment of the courts. To hold otherwise would be for the courts, to usurp the functions which have been vested by statute, under the ciyil service law, in the mayor. The principle is not violated by cases which hold that in proceedings in quo warranto a temporary injunction may be granted as an incident to the main action to try the title to the office, and for the purpose only of holding matters in statu quo until the case shall have been determined by the court.

In the cases at bar, if the mayor should undertake to remove the plaintiffs without any charges being filed against them, or assuming to act on charges which are insufficient in law, an adequate remedy would exist at law for their relief.' By the' terms of the statute the mayor is without power to act until charges sufficient in law have been made against the commissioners, and if he should act without charges, an order of removal so made would be a nullity. In ease of such attempted removal and the appointment of successors who should thereupon undertake to exercise the functions of civil service commissioners, the title to the office could be determined in a' proceeding commonly resorted to for such purpose and known as one in quo warranto.

I call attention to the case of State, ex rel Attorney-General, v. Hoglan et al, 64 O. S., 532, which was a proceeding in quo warranto to determine the title of certain civil service commissioners in the city of Columbus, it being claimed that the commissioners had been removed without notice or opportunity to be heard, and upon insufficient charges. In the course of the opinion in that'case the Supreme Court use the following language :

‘ ‘ Power is conferred on the mayor to remove any commissioner for incompetence, neglect of duty, malfeasance in office, habitual drunkenness, or gross immorality; and any manifest failure on the part of any commissioner to enforce the provisions of tbe act. The power is one that can not be arbitrarily exercised. It requires charges to be made, supported by such a statement of facts as in judgment of law constitute the charge made; and an opportunity to the party to be heard. "Whilst the court can not pass on the truth of the facts alleged, or interfere with the discretion of the mayor in this regard, it may and will, when appealed to, pass on the sufficiency of the facts on which the charges are made.”

It will be noticed that the statute governing the disposition of any charges which may be made against the plaintiffs, provides that the mayor may order the removal-of a commissioner for any one of three causes, namely, inefficiency, neglect of duty, or malfeasance in office, and that this order may only be made after such commissioner has been given a copy of the charges made against him and an opportunity to be publicly heard in his own defense. The statute then concludes with the following words, “and any such act of removal shall be final.” We think the General Assembly by the use of this language last quoted contemplated that an order of removal in order to be final, must be in accordance with the provision of the statute by which the mayor is clothed with authority to remove. An arbitrary order of removal not based on charges sufficient in law and without any opportunity of being heard, would not be such a removal as is contemplated by the statute.

Under a similar statute the Supreme Court held in State, ex rel Holbrook, v. Egry, 79 O. S., 400, in language found on page 406, as follows:

“There were similar provisions in the former municipal code and there are such statutory provisions' respecting other officers and boards, and the court has, in numerous cases respecting them, held, in effect, notwithstanding the statute assumes to confer exclusive power or to make the determination final, that the courts, although they may not judge on the merits, have authority to keep such tribunal, board or.officers, within the limits of their jurisdiction, and to compel them to exercise it with regularity.”

We are unanimously of the opinion that under the facts set forth in these petitions, injunction will not lie to prevent the removal of the plaintiffs nor to prevent a hearing by the mayor of any such charges as may be made against them or either of them. Of course, we are not now passing upon the sufficiency of any charges which may have been made. Those charges, if any such exist, are not now before us and we express no opinion as to their sufficiency. They are not set forth in the petition in either case and even if they were included in the petition, their sufficiency could not be determined in an action for injunction.

We hold, therefore, that the plaintiffs are not entitled to the remedy of injunction, and the temporary restraining order will be dissolved.

Kinkade, J.

I concur in the conclusion reached and also in all that has been stated in the opinion of Judge Richards. It is fundamental, as has been stated, that the extraordinary writ of injunction will not be issued where there exists an adequate remedy at law, and it is equally fundamental that it will not be issued where the party seeking the injunction has no need of any remedy either in equity or at law. With commendable frankness counsel for the petitioners in these cases plant their ease on the proposition that the mayor was wholly without power to take the action which he threatened, to take. If that be true, then, as stated in tlie opinion of Judge Richards, the action, if taken, would be an utter nullity, void from every view point, and it is somewhat difficult to see how an act of this character, utterly void, could in any wise violate or interfere with the rights of the petitioners. Void action is no action, and it may be entirely disregarded by the persons against whom it is sought to be directed in its effect; and this is sufficient reason alone, it seems to me, to deny the prayer of these petitions for an injunction.

Chittenden, J.

I concur in the conclusion reached and in what has been said by both of my associates.


source: Caselaw Access Project

author: Jones (E. II.), J.

license: Public Domain

text:
    INSTRUCTIONS TO JURY IN A WILL CONTEST.
    Court of Appeals for Hamilton County.
    Edgar Stark, Executor, v. Frances M. Cress et al.

    Decided, December 12, 1914.

      Wills — Charge of Court — Value to be Given to the Certificate of the Probate Court — One of the Witnesses .to the Will Testifies that the Testatrix Was Incapable — Weight of Testimony Involved in Such a Contradiction — Interpretation of the Requirement that One Undertaking to Make a Will Shall be of Sound Mind and Memory.

    1. To charge the jury with reference to the admission of a will to probate, that “by prima facie evidence we mean that these matters certified by the probate court probably occurred,” is to give less than- full value to the certificate of the probate court and is erroneous, and the error involved therein can not be cured by a correct statement in another part of the charge.
    2. It is error to refuse to charge in a will case, that a person who attaches his name as a -witness to a testamentary instrument impliedly certifies that the testator is of sound mind and competent to make a will and while the law will permit him to subsequently testify to the contrary, because the truth, if such it be, should be learned, yet the jury in weighing his testimony may consider the fact of such implied contradiction.
    3. The charge that “it is not essential to the validity of a will that all o-r any of the subscribing witnesses should testify ihat the testatrix was of sound mind and memory, provided you find from all the evidence before you that she was of sound mind and memory,” was a proper one to give in the case under consideration.
    4. The requirement that a testator shall be of sound mind and memory at the time of the execution of the will, does not mean that one who has been weakened by sickness is incapable of making a will, but only that he shall then have sufficient memory and the mental capacity to understand fully what he is doing.

      Stephens, Lincoln & Stephens and Rufus B. Smith, for plaintiff in error.

      Horstman •& Horstman and W. 8. Walker, contra.
    Jones (Oliver B.), J.• Swing, P. J., concurs; Jones (E. PL), J., dissents.

      Reversing Cress el al v. Stark. Excr., 14 N.P.(N.S.), 545.

   The action below was brought to set aside the will of Mary Ann Britt, the petition alleging that “said paper writing is not the last will and testament of said Mary Ann Britt.” A verdict of the jury was had setting aside the will and judgment thereon was entered by the court below.

It is argued that this verdict and judgment was against the weight of the evidence. There is no evidence sufficient to sustain the verdict -upon the ground of any restraint or undue influence exerted over the testator at the tipie of the execution of the will, so that it can only be sustained on the ground that the testator was not then of due mental testamentary capacity. There is considerable conflict of testimony upon this question, to such an extent that we would be unwilling to set aside the verdict of a jury and reverse the judgment on this ground.

Plaintiffs in error, however, claim that the court below erred in refusing to givé certain special charges requested by them, and also erred in certain particulars in the general charge.

Section 12083. of the General Code in the chapter relating to the contest of a will is as follows:

“On the trial of such issue, the order of probate shall be prima facie evidence of the due attestation, execution, and validity of the will or codicil.7 7 ■

In its general charge to the jury the court used this language:

“The order of probate is prima facie evidence of the due attestation, execution and validity of the will.
“By ‘prima facie’ we mean if you find that these matters certified to by the probate court probably occurred, they will prevail, unless the contrary be found by you by all the evidence in the case now being tried.7 7

This charge as given is erroneous. Instead of giving full value to the certificate of probate by the probate court as the statute requires, this charge would compel the jury to find “that the matter certified to by the court probably occurred.” That such a charge constitutes prejudicial error is held in Hall v. Hall, 78 O. S., 415; Seal v. Goebel, Exr., 11 C.C.(N.S.), 433. Before the giving of this general charge the court (also R. 524, 525 and 526) in a discussion with counsel in the presence of the jury, charged the jury in the same words, and further qualified that part of the charge by reading in connection with it a special charge which had previously been given at the request of counsel for defendants as follows:

‘ ‘ The order of the probate court admitting the" will of Mary Ann Britt to probate raises a presumption that the will so probated is the valid last will and testament of Mary Ann Britt, and before you would be entitled to return a verdict setting aside her will, you must find that the evidence against the will outweighs both the evidence in its favor and the presumption arising from the order of the probate court admitting the will to probate as the valid will and testament of Mary Ann Britt."

It is claimed by counsel for defendant in error that this special charge and other parts of the general charge cured the error contained in the general charge above quoted. This claim can not be sustained, as it can not be determined which part of the instructions the jury followed, and this instruction must therefore be regarded as prejudicial error. Rapp v. Becker, 4 C.C.(N.S.) 139; Insurance Co. v. Purcell, 19 C. C., 135.

In our opinion it was error for the court to refuse Special Charge No. 5, which was asked by defendants before argument, and is as follows:'

“A person who attaches his name as a witness to a testamentary instrument, impliedly certifies that the testator is of sound mind and competent to make a will • and while the law will subsequently permit him to testify to the contrary because the truth, if such it be, should be learned, yet the jury trying the case may consider the fact of such implied contradiction in weighing his testimony.” '

This charge was taken from the case of Stevens v. Leonard, 56 N. E., 27. The Supreme Court of Indiana, in its opinion in this ease, discusses fully the position of a witness to a will, and quotes numerous authorities to sustain it. It is too long to quote in full all the pertinent part, but it is so applicable to this case that we can not refrain from quoting the following portion found on page 31:

“It can not be thought possible that an honest man, of ordinary intelligence, would subscribe his name as a witness to an instrument executed by a person whom he believed to be of unsound mind or under coercion or constraint. The fact that such a man voluntarily identifies himself with the1 transaction as a witness is an indication that in his opinion the person executing the instrument is competent to do so. The witness must be understood to attest not merely the act of signing, but also the mental capacity of the testator to sign. A subscribing witness may, it is true, be heard to impeach the will; but, if he assumes that attitude towards it, he does so at the peril of his reputation for candor and veracity. Such an attitude is not merely inconsistent with the position he -has voluntarily taken, but is suggestive of fraud and double dealing. It involves a betrayal of confidence, and, if the witness is believed, in some instances it may be attended with the most distressing consequences. The credibility of the witness becomes at once a matter of serious inquiry, and his desertion of his position as a sustaining witness is an important fact for the consideration of the jury. In such a case it is entirely proper for the court to inform the jury that they may consider the fact of such implied contradiction, if they find it exists, in weighing his testimony. A direction of this character is not an invasion of the province of the jury, nor is it objectionable on the ground that it singles out a witness for attack or criticism. It is the duty of the court in all cases to instruct the jury upon the law of the case, whether the testimony of one witness or the testimony of a score of witnesses is comprehended within the rules necessary to be stated for their guidance. In the instruction under examination, the court did nothing more than declare,'as it was competent for it to do, a familar rule of law; leaving the application of it entirely to the jury, and without giving them to understand what his own opinion on the subject was. ’ ’

Special Charge No. 4 relating to the testimony of the same witnesses to the will, was properly refused by the court, as it might be held to invade the province- of the jury by stating that their testimony should be viewed with suspicion. State v. Tuttile, 67 O. S., 440; Sharp v. State, 16 O. S., 218.

Special Charge No. 6 was requested by counsel for defendants, in the following language:

“It is not essential to the validity of a will that all or any of the subscribing witnesses should testify that the testatrix was of sound mind and memory provided you find from all the evidence before you that she was of sound mind and memory. ’ ’

It appears from the record that this charge was submitted to the court in writing, while the argument by counsel for plaintiffs was in progress before the jury, and it was then refused by the court without having been brought to the attention of the opposite counsel — leading counsel being still engaged in argu-' ment to the jury, and that such counsel had no knowledge of it until the hearing of the motion for new trial.

The charge was a proper one and should have been given. The fact that it was not asked until the argument before the jury was in progress is not sufficient reason for refusing it (Shear Co. v. Carton Co., 75 O. S., 169). We have been cited to no statute requiring the submission of a charge to opposite counsel before presentation to the court, but it is customary so to do, and it is the privilege of counsel to be advised of all steps that are being taken in the trial of a ease. The request for this charge should have been brought to the attention of counsel for plaintiff. The record would indicate that it was not so done because of the fact that it was refused by the court while the argument being made by leading counsel was still proceeding

The court also erred in refusing Special Charge No. 1 requested by defendants, which is as follows:

‘ ‘ If prior to the execution of the will you find that Mrs. Britt had sufficient mental capacity to understand the nature and extent of her property, to realize the relation which she held to those who had claims against her, and to make a selection among them; and that while having such mental capacity she gave instructions to her attorney as to what disposition she wished to make of her property by will.
“And if you further find that her instructions were carried out by her attorney, and that while having the mental capacity before stated the will was read over to her and she assented to it,
“And if you further find that when she signed said will she knew that she was signing the will previously drawn by her attorney in obedience to her instructions, and she knew it had been drawn according to her instructions and approved by her, and intended by her signature to give assent to such instrument as her will, knowing its contents, then I charge you that if such instrument were properly executed and witnessed, it would be her valid last will and testament. ’ ’

Our statute requires that a testator shall have sound mind and memory at the time of the execution of a will. This does not, however, mean that a person who has been weakened by sickness is incapable of making a will; it simply means that the testator must then have sufficient memory and mental capacity necessary to understand fully what he is doing. If he had previously considered all the questions involved and determined the disposition to be made of his property, he can carry out that determination by the execution of a will previously drawn or the instructions for which have been previously given, if he has strength sufficient to know that it carries out such disposition. Parker v. Felgate, 8 Probate Div., 171; Perera v. Perera, 1901 Appeal Cases, 354; Hathorn v. King, Exr., 8 Mass., 371; O’Brien v. Dwyer, 45 N. J. Eq., 689, 696; Schouler on Wills, 3 Ed., Section 73.

AAre find no other errors in the record prejudicial to plaintiffs in error.

Because of these errors in the charge, the majority of the court are of the opinion that the defendants below were prejudiced in the submission of the case to the jury, and that the motion for a new trial should have been granted. The judgment is therefore reversed.

Jones (E. II.), J.

While agreeing that the errors occurred as pointed out by the majority opinion, I can not concur in a judgment of reversal, being of the opinion that the evidence so clearly shows mental and physical incapacity as to make the errors non-prejudieial.


text:
    INJURY FROM EXPLOSION OF A RAILWAY TORPEDO.
    Court of Appeals for Hamilton County.
    The Cincinnati, Hamilton & Dayton Railway Company v. John Hahn.
    Decided, March 29, 1915.

      Negligence — In the Placing of a Railway Torpedo — Must be Shown by One Claiming to Have Been Injured by Its Explosion.

    1. One claiming to liare been injured by being struck by a piece of metal thrown by the explosion of a railroad torpedo, is not entitled to recover unless it can be shown that the railway company was guilty of negligence in placing the torpedo where it was placed.
    2. The manifest weight of the testimony in the ihstant case is to the effect that railroad torpedoes do not throw particles above the waist line, and the injury from which the plaintiff suffered having occurred while he was on an overhead bridge twenty-five feet above the rails, such result of a torpedo explosion could not have been reasonably expected by the railway company, and it was error for the trial court to refuse to direct a verdict for the railway company.

      Waite Schindel, for plaintiff in error.

      Ilorstman & Ilorstman, contra.

      Chittenden, J.; Richards, J., and Kinkade, J., concur.
   The action was brought in the Superior Court by the plaintiff, John Ilahn, against the .Cincinnati, Hamilton & Dayton Railway Company, to recover damages alleged to have been sustained by reason of being struck in the jaw by a particle of metal from an exploded railroad torpedo. The trial resulted in a verdict and judgment in favor of the plaintiff for $1,000.

It is claimed by the plaintiff in error that the trial court erred in refusing to direct a verdict in favor of the defendant at the close of all the evidence; that the verdict and judgment are contrary to the evidence; and that the damages are excessive.

The Cincinnati, Hamilton & Dayton Railway Company tracks crossed under what is known as the Hopple street bridge at an acute angle. The evidence tends to show that the plaintiff was about to go upon the bridge when a torpedo was exploded by a passing locomotive pulling a passenger train. It is claimed that the location of the torpedo is shown to have been some 15 or 20 feet northerly from the line of the bridge. The bridge itself was 25 feet 1 inches above the rail of the track upon which the train was being operated. A considerable number of witnesses testified as to the distances that particles of exploded torpedoes will fly. It is claimed by the railroad company that the evidence tends to show that the particles of an exploded torpedo will in no event fly in an upward direction. An examination of the evidence on this question discloses but one witness who testifies to particles flying in an upward direction to any extent. One witness testifies to scars from exploded torpedoes upon a brige some 25 feet above the railroad track over which he had operated an engine as a locomotive engineer. It appears, however, that his knowledge is based upon hearsay evidence. One other witness testifies to a scar on a telegraph pole 8 feet above the ground, but upon further examination of his evidence it appears that the rail upon which the torpedo was placed was upon a trestle and that the particle flew directly sidewise from the rail, striking the telegraph pole at a point 8' feet above the ground. A number of old and experienced railroad men testified that they had never known of particles flying high enough to injure people above the waist line. The evidence of an expert in the manufacture of railroad torpedoes shows that in a large number of tests, not less than 200, he did not find that particles flew higher than three feet above the top of the rail.

In Cleveland, etc., Railway Co. v. Marsh, 63 O. S., 236, it was held that the use of signal torpedoes being necessary, negligence in their use-is not to be presumed but must be proven either directly or by proof of facts from which negligence will reasonably follow and be presumed. Assuming that the torpedo was exploded at the point claimed by the plaintiff below, and that he was struck by a particle from the torpedo, he is not entitled to recover unless it can be found that the railroad company was guilty of some act of negligence in placing the torpedo at the point claimed.

It is clear from the evidence as shown in the record that no such action on the part of an exploded torpedo as would endanger people on the bridge or at a point occupied by the plaintiff at the time of his injury, could have been reasonably anticipated by the railway company. We think that the evidence entirely fails to prove negligence upon the part of the railroad company, or to prove facts from which negligence could be inferred.

The trial court should have granted the motion of the defendant to direct a verdict in its favor at the conclusion of all the evidence. For such error the judgment of the superior court will be reversed, and this court will enter the judgment in favor of the defendant that should have been entered in the superior court.


text:
    EXPERT TESTIMONY CONCERNING MACHINES.
    Circuit Court of Cuyahoga County.
    The Sherwin-Williams Co. v. George J. Kavanaugh.

    Decided, November 16, 1908.

      Error — Expert Testimony — Witnesses May (Jive Expert Testimony Goneerning Machines When Familiar With Similar Machines— Reviewing Court Can Wot Pass Upon Weight of Evidence When Object Illustrating Evidence in Trial Court is Wot Before it.

    1. Witnesses may give expert evidence concerning the construction and operation of a certain machine, where it appears that they have operated similar machines of a slightly different size or in a slightly different position.
    2. Where it appears from the bill of exceptions that witnesses in testifying used a photo-engraving and a piece of tin in explaining the construction and operation of a machine, such testimony being plain and patent to the jury but more or less unintelligible to a reviewing court, it can not be said without such photo-engraving and piece of tin before it, that the reviewing court has all of the evidence which was before the jury, and the court will not be able to determine whether the verdict is sustained by the weight of the evidence.

      Ingersoll & Bacon, for plaintiff in error.

      Hart, Canfield & Croke, contra.
    TIenry, J. ¡ Winch, J., and Marvin, J,. concur.

      Affirmed without opinion, Sherwin-Williams Co. v. Kavanaugh, 81 Ohio State, 503.

   This was a case of employer’s liability for injuries to an employee. Kavanaugh’s hand was caught and crushed between the dies of a stamping press used at the time to stamp out the tin tops or bottoms of gallon paint cans. He recovered a verdict and judgment in the court of common pleas. Among the errors complained of in this proceeding is the admission in evidence of the expert testimony of two witnesses, offered by the plaintiff below, who testified as to the manner of feeding the press under the circumstances attending this accident, athough it appeared that one of them had never operated such a press with dies of just the size then in use, and the other had never operated it when the table was in the precise position in which it was used on this occasion; otherwise, both witnesses were fully qualified to give expert testimony, by reason of long familiarity and actual use of the kind of machine in question. We hold that thé admission of this evidence was not error.

It is further contended that the verdict is not sustained by the evidence in two particulars; first: as to the foreman’s promise to repair the machine when the plaintiff below complained to him that it had repeated, and his assurance thereafter to the plaintiff below that it had been so. repaired; secondly, upon the question of the contributory negligence of the plaintiff below in placing his hand between the dies, when feeding the press.

As to the former contention, there is an apparent conflict between the testimony of the plaintiff below to conversations with the foreman, and the evidence of a written time sheet, indicating that the foreman was not present on the day in question. The time sheet was compiled with other slips, and if it be competent evidence of the foreman’s absence on that occasion, it is not, to our minds, so conclusive as to warrant us in holding that the jury were wrong in resolving the conflict, as their verdict implies that they did. On the other point it appears, from the bill of exceptions, that a photo-engraving of the press was employed by a witness on behalf of the plaintiff below, to illustrate to the jury his testimony of the construction of the press. It was not formally offered in evidence, but it undoubtedly had the effect of evidence, and the testimony in this regard is hardly intelligible without it. This picture is not included in the bill of exceptions; this is also true of the piece of tin, which it appears from the testimony of one of the witnesses was taken by him from the press immediately after the accident, and which appears from the bill to have been exhibited to the jury, although it, too, is absent from the bill of exceptions, presumably because it was not formally offered in evidence.

In Foster Coal Company v. Moherman et al, 9 C. C., 544, it was held in the second paragraph of the syllabus that:

“Where it appears from the bill of exceptions that the witnesses in testifying largely used a map, pointing out places on it, such testimony being patent and plain to the jury, but entirely unintelligible to the reviewing court, it can not be said that all the evidence before such court that was before the jury, and the court will not be able to determine the question whether the verdict is sustained by the weight of the evidence or not.”

We are strongly inclined to the opinion that, under the authority of this decision, we are without power to weigh the evidence in this case. So far as we understand the facts, the plaintiff’s evidence tends to prove that while he was working at this machine it repeated; that is to say, the upper die descended upon the lower die a second time, without being caused to make such second descent by any pressure of the operator’s foot upon the treadle by which means alone such descents could normally be actuated.

As already stated, he complained to the foreman, and received a promise of repairs, which the foreman subsequently assured him had been done. On the following day the machine again repeated while plaintiff’s hand was between the dies- in the act of feeding the press. It appears also that plaintiff might have adopted a safer method of feeding, which would not have required him to have his hand between the dies, but that the method which he employed was the usual and more convenient manner. Upon all these points, though there is much conflict of testimony, perhaps if we had all the light which the jury had by way of illustration, as well as the oral testimony, we might be led to a different conclusion from that reached by them. Neither the negligence of the defendant .nor the freedom from contributory negligence on the part of the plaintiff below are as clear as they were in the very similar'case of Goggin v. The Electric Controller & Supply Co., decided by this court February 3, 1908, wherein we said:

“It thus appears, if these statements are true, that the cause of the spindle’s falling at the time he (the plaintiff) was injured was the defective condition of the nut and the screw, which was a part of it. It was a defect in this precise place that he had observed and complained of in the morning; it was this defective condition which the foreman had promised the plaintiff to repair and assured him that it had been repaired. The plain inference as it seems to us is that the repairs made were not complete or effectual, but that the same trouble which had twice appeared in the morning recurred again in the evening when plaintiff was injured. This, we hold, made a case for the jury, and it was error under the circumstances to direct a verdict for the defendant.”

In the state of the record before us we are not prepared to say that the evidence, properly understood, would not suffice to sustain the verdict and judgment of the court of common pleas. • The judgment is therefore affirmed.


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    EXECUTION OF CONDITIONAL SALES CONTRACTS.
    Circuit Court of Cuyahoga County.
    The State Banking & Trust Co. v. The Henry Martin Brick Machine Manufacturing Company et al.
    Decided, November 16, 1908.

      Conditional Sales — Signature of Manager of Vendee Corporation Sufficient — Vendor Under a Conditional Sale at Common Law May Retake Without Tendering Repayment of Amount Paid.

    1. Where it appears in the body of a conditional contract of sale that the vendee is a certain corporation, and the contract is signed by the purchaser in such manner as to comply with the provisions of Section 4155-2, Revised Statutes, if signed by and in the name of its manager thereunto lawfully authorized, it is binding although the name of the corporation is not signed.
    2. At common law where title is expressly retained in the vendor of chattels until the purchase price is paid, upon default by the vendee, the vendor can retake them either from the vendee or any one having possession, without first tendering repayment of the sums paid by the vendee.

      Smith, Taft & Arter, for plaintiff in error.

      Kline, Tolies & Goff and Cook, McGowan & Foote, contra.

      Henry, J.; Winch, J., and Marvin, J., concur.
   This proceeding in error presents questions' as to fixtures and conditional sales. The Eggers Brick Company purchased from the ITenry Martin Brick Machine Manufacturing Co. a dryer and other extensive appliances for the making of bricks, by written contract, wherein the title, until payment made, was reserved in the vendor. After these appliances were erected on the" Eggers Brick Company’s premises the land was sold, on foreclosure sale, to the State Banking & Trust Company, plaintiff in error here, which had notice, however, of the Martin Brick Machine Manufacturing Company’s claim of title to said appliances. The action below was a replevin proceeding, in which the Martin Brick Manufacturing Company recovered a verdict and judgment, but the appliances sought to be replevied were retaken by the Eggers Brick Company, under re-delivery bond, and the same are claimed by the bank, upon the theory that they are fixtures as between it and the Eggers Brick Company; and also, because recourse to the re-delivery bond is now the machine brick manufacturing company’s sole reliance it, too, is without a claim upon the physical property.

As against the bank, the trustee in bankruptcy of the Eggers Brick Company contends that the dryer, etc., are not fixtures but severable chattels which did not pass with the realty.

As against the- machine manufacturing company, the trustee in bankruptcy contends that the contract of conditional sale is invalid under Section (4155-2), Revised Statutes, not being evidenced by writing signed by the purchaser, and because the vendor being expressly excluded from,the operation of Section 4155-3, Revised Statutes, it is remitted to its common law rights and hence has no right to the possession of the machinery delivered by it until it returns, or offers to return, that part of the purchase price already received by it.

Taking up the last claim first, we hold, upon the authority of Sheehan et al v. Davis, 17 O. S., 570, that the contract in question was executed in a manner binding upon the Eggers Brick Company when it was signed by and in the name of its manager, thereunto lawfully authorized, notwithstanding that the name of the corporation is not signed thereto, for it appears from the body of the instrument that the Eggers Brick Company was the real contracting party.

It is true that the word sign and execute are not technically convertible terms, but it was held in Tiernan v. Fennimore, 17 Ohio, 545, that they are, in common parlance, used interchangeably. We interpret the word “signed” in Section (4155-2) in the broader sense.

As regards the right of the brick machine manufacturing company to maintain replevin for the dryer, etc., in pursuance of its retained title and for breach of the Eggers Brick Company’s agreement to pay, as stipulated, it is not true at the common law, as we understand it, that a tender back must be of such portion of the purchase money as had already been paid. The authorities cited on behalf of the trustee in bankruptcy do not apply where the vendor’s title is expressly retained until payment completed. Whatever right the vendee may have to a return of the money so paid can not be asserted in defense of the vendor’s right to retake possession of the goods. The vendee, in such case, has no property in the goods themselves (Sage v. Sleutz, 23 O. S., 1; National Cash Register Co. v. Cervone, 76 O. S., 12, 20). In the latter case, Spear, J., pronouncing the opinion of the court says:

“Prior to the passage of the conditional sales statutes of May 4, 1885 (82 Ohio Laws, 238), the title to property so conditionally sold remained absolutely in the vendor until the purchase price should be fully paid, and he might retake the property, if any part of the purchase money remained due and unpaid, either from the purchaser or any person having possession of it.”

It is thus apparent that the absence of' a covenant to that effect from the conditional sale contract in the case before us is quite immaterial.

All the remaining questions in this case will have been fully disposed of, if we should find that the dryer, etc., were not so annexed to the realty as to become a part of it, and in this behalf we had with the court below, on the authority of Case Manufacturing Company v. Garven, 45. O. S., 289. In view of the very full discussion of the law of fixtures in the various reported decisions of the Supreme Court of this state, we deem it unprofitable to enter into an extended discussion of that subject here. Suffice it to say that our re-examination of these authorities, as applied to the facts of this case, satisfy us that there is no error in the record, and hence the judgment below is affirmed.


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    UNENFORCEABLE TRUST.
    Circuit Court of Cuyahoga County.
    Dorr E. Warner, Assignee for the Benefit of the Creditors of the Glenville Banking & Trust Company, v. J. N. Amor.
    Decided, November 16, 1908.

      Trusts and Trustees — Trust Unenforceable for Uncertainty-,

    Where evidence discloses that funds in the hands of an assignee are impressed with a trust, but nothing from which the amount of such funds can be determined, the trust is unenforceable.

      Dorr E. Warner, for plaintiff in error.

      J. N. Amor and C. N. Sheldon, contra.
    Henry, J.; Winch, J., and Marvin, J., concur.
   This proceeding in error is prosecuted by the assignee for the benefit of the creditors of the Glehville Banking & Trust Company to reverse the judgment of the court of common pleas in favor of J. N. Amor, in an appeal from the.judgment of the Court of Insolvency of Cuyahoga County.-

The facts deducible from the entire evidence as presented in a bill of exceptions are substantially as follows:

J. N. Amor, one of the directors of the Glenville Banking & Trust Company, opened a special account with that institution August 22, 1907, in which deposits varying in amount from $10 up to $500 were made at frequent intervals from that date forward to November, 1907, when this assignment was made by the bank for its creditors. These deposits were made to the bank by various persons in part payment of lots purchased by them from Amor and others whom he represented in these real estate transactions. The bank, by agreement with Amor, was to have 1% of the sums so collected by it, for its services and the total amount in this special account, at the time of the assignment was upwards of $2,000.

There passed into the hands of the assignee, as shown by his testimony, an amount which he fails to fix'exactly, but which, as we interpret his testimony, he means to say amounted in all to “about $1,000.”

By order of the insolvency court, as shown by the transcript filed in this court, $889.55 of this amount was shortly after-wards paid out by the assignee as a preferred claim. Disregarding the collections since made by the assignee it is thus left wholly uncertain what, if any, part of the sum of “about $1,000” originally received by him was left remaining in his hands, after payment of this preferred claim.

We are asked to hold that this balance is impressible with a trust in Amor’s favor, upon the theory approved by us in the ease of Warner, Assignee, v. Urfer, ante, decided November 4, 1908, to the effect that after commingling trust money with its own the bank’s minimum cash balance thereafter on hand would be deemed to consist, in whole or in part, as the ease might be, of cestui que trust’s money, because as between the rightful paying out of the cestui que trust’s money to other persons, the former is presumed. • .

In the Urfer case we had before us an agreed statement of facts which showed definitely the net amount received by the assignee from the b’ank, when the assignment was made, but it was further stipulated that Urfer’s money could not be traced in either its original or any substituted form. Hence, we were precluded from drawing the inference that the net amount so received by the assignee had been the minimum amount in the custody of the bank during the entire interval between the creation of the trust in Urfer’s favor, and the date of the assignment.

In the present case, however, the difficulty is to determine whether any, and if so, what amount of money was delivered by the bank to its assignee and impressible with a trust in Amor’s favor. AVhile we hold that the evidence justifies the finding of the court of common pleas that Amor’s special deposit account constituted a trust fund in the hands of the bank, we fail to find in the bill of exceptions any sufficient evidence to warrant that court in its findings that the assignee received moneys in any definite sum belonging to Amor. For though we are not prepared to say, from the evidence, that as a director, Amor’s knowledge generally of its affairs affected him with notice of its breach of trust, it is nevertheless palpably true that the money collected by the bank for him was indistinguishably intermingled with its other assets. Further discussion of the ease is rendered unnecessary, in view of our opinion filed in the Urfer case, already referred to.

For error in refusing the assignee’s motion for a new trial, upon the ground that the. judgment and order of the court of common pleas directing him to prefer and pay the amount of Amor’s claim is not sustained by sufficient evidence, said judgment is reversed and the cause, remanded for further proceedings.


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    TAX SALE CERTIFICATE INVALID FOR INDEFINITENESS.
    Circuit Court of Cuyahoga County.
    The State of Ohio, on Relation of Wm. L. West, v. Robert C. Wright et al.

    Decided, November 17, 1908.

      Tax Sale — Mandamus—Holder of Certificate of Tax Sale With Vague Description Can Not Compel Execution of Tax Deed — Mandamus Can Not he Invoiced to Control Discretion of County Auditor.

    1. A certificate of tax sale which described the property sold as being “5-12 A. in forks of road” is so indefinite that any deed made therefor would be void for uncertainty and the court will not do a vain thing by ordering the execution of such a deed.
    2. Courts will not attempt to control by mandamus, or set at naught the discretion of the county auditor, where, upon an application of a party claiming an interest in property sold for taxes, lie lias decided that the party has an interest and allowed him to redeem the property.
    Henry, J.; Winch, J., and Marvin, J., concur. ,

       Affirmed without opinion, State ex rel, v. Wright, 84 Ohio State, 448.

   This is a proceeding in mandamus' to compel the defendant, Wright, as auditor of Cuyahoga county, to execute and deliver to the relator a deed of land which was purchased by the latter at tax sale, and for -which he holds a tax sale certificate. The former owner was a Baptist society which is said to have ceased long ago to exist. A general county organization of the same religious faith is alleged to have interested itself in procuring the redemption of the property from said tax sale, in the name or on behalf of the survivors or successors of the trustees who last held that office in the extinct society. This redemption constitutes the county auditor’s reason for refusing the relator’s demand for a deed. The relator contends that the redemption is void for want of interest in the proerty on the part of the persons redeeming.

Upon the defendant’s motion for judgment on the pleadings in this case, we have come to a conclusion in which ive all agree so far as the result is concerned. It is that each of the two objections raised on behalf of the defendant, to granting the relief asked for by the petition, is well taken. One of my brethren agrees with me as to one of the grounds urged, and the other agrees as to the remaining ground. For myself, I am convinced that both grounds are well taken.

Taking them up singly and briefly, the first ground relied on is that the description of the land in the certificate of tax sale is so vague and uncertain, that any deed which we might order the auditor to make, in pursuance of this petition for mandamus, would necessarily be void, and as the court can not undertake to do a vain thing, no writ requiring a worthless deed should issue.

The property is described in this tax certificate as being “5/12 A. in forks of road,” etc. This description is no better than that in the ease of Winkler v. Higgins, 9 O. S., 600, which declares the law to be, as laid down in the first paragraph of the syllabus:

“An auditor’s deed upon a sale of lands for delinquent taxes containing only the following description: a ‘tract of land in the county of Scioto, to-wit: one-third part of French Grant, lot sixty-six containing seventy-two and a half acres, ’ and made upon a tax certificate containing only the following description: ‘part lot 66, acres 72y2’ is void for uncertainty.”

The deed which we should order to be made, if we were to grant the prayer of this petition, would upon the authority of this decision of our Supreme Court, necessarily be void, and the granting of the relief prayed for would amount to self-stultification on the part of the court. State v. Burg, 19 O. S., 316; State v. McGregor, 44 O. S., 628.

It is not a question whether the defendant has a right to raise the defense he has sought to raise.. The plaintiff must recover, if at ¿11, upon the strength of his own petition and not upon the weakness of any defense which may be interposed to it. And whether or not it be true that the auditor is in no situation himself to allege the insufficiency of the description contained in his certificate, it is certainly true that if the relator has alleged a description which is insufficient to give him a valid deed, in case the relief prayed for in his petition be granted, the court can not grant hi2n that relief, for, in so doing, it would do a vain thing.

Upon the other question, whether mandamus will lie at all, we .are of the opinion that an effort is made in this petition, to direct the judgment and control the discretion of the auditor in respect of the action which he has already taken, in cancelling the tax sale and in allowing a redemption.

It is undoubtedly true, under the statutes and decisions in this state, that a person not having an interest of any sort in the land which he seeks to redeem has no right to redeem it from a tax sale. It is therefore incumbent upon the auditor, when an attempt is made to redeem property, to determine whether the applicant has any interest in it. Of course it is not necessary that the applicant shall be the full legal owner; he may be the equitable owner, part owner, or he may have an interest merely by way of lien, reversion, or the like (Plumb v. Robinson, 13 O. S., 298). But whatever it be, he must have some interest, in order to make successful application to the auditor for redemption. McMillin v. Robbins, 5 O., 28.

Such application in this case has been passed upon. The determination of the question whether or not the'applicant had such interest as entitled him to present his application was devolved by law upon the auditor, and he found that the requisite interest existed.

In this proceeding we are asked to ignore the very right, discretion and duty, vested in the auditor, of cancelling the tax sale upon proper application therefor, and to treat his finding in regard to the redemption as of no account- and invalid. The auditor undoubtedly has jurisdiction to entertain an application of that sort and to pass upon it, as he has passed upon it in this instance; and, by mandamus, his judgment in that regard can not now be reviewed. We can not in this proceeding treat it as void, nor can we consider evidence to show that the action of the auditor was ill advised. The effect of such action upon our part would be not only to control and direct his judgment and discretion, but to disregard and nullify the same when already exercised and executed

The statutes authorizing the redemption of land sold for taxes are equitable in their character, and are to be liberally construed (Masterson v. Beasley, 3 Ohio, 301). While the equity of redemption exists, the purchaser at tax sale is vested with no title to the property, but only to the lien of the state for taxes, or in other words to security for the return of his outlay, with interest, and penalty (State v. Godfrey, 62 O. S., 18, 22). If as in this case such return is made, or made available to him, a redemption, however irregular in other respects, is no invasion of his rights and creates no right of action in his favor by mandamus or otherwise.

Hence we hold that mandamus does not lie under the circumstances of this case and the petition will therefore be dismissed.


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    NO ERROR IN REFUSING TO SET ASIDE DEFAULT JUDGMENT.
    Circuit Court of Cuyahoga County.
    John Bartow v. Walter A. Barrows, Jr.
    Decided, February 17, 1908.

      Default Judgment Not Set Aside on Error, When no Abuse of Discretion is Shown.

    A default judgment rendered after two answers had been stricken from the files, will not be set aside on error where the only claim is that at the time the default was taken defendant did not have accurate information as to what defense he had.

      Goulder, Holding & Hasten, for plaintiff in error.

      Freibolin & Byers, contra.
    Marvin, J.; Wincii, J., and Henry, J., concur.
   The plaintiff in the court below filed his petition in the short form upon a promissory note, which had been signed by the defendant as surety. The note ivas copied into the petition and an allegation made that no payment had been made upon the note. The original answer admitted the making of the note and alleged in these words: “that he has no knowledge or information as to whether plaintiff is now the owner of said note or whether J. C. Murfey, the maker of said note, has made no payment thereon, and, therefore, denies said allegations.”

For a second defense the allegation was made that the plaintiff for a valuable consideration agreed with the principal maker of said note to extend the time of its payment for a definite time, and further that the plaintiff agreed with said original maker that if at the time to which the payment of said note was extended, as aforesaid, the stock sold to said original maker (Murfey) by plaintiff and for which said note was given should not be of any value, he would not require payment of said note, and release and discharge the same in that event; and the defendant says that at the time to which said note was extended, as aforesaid, said stock was not of any value whatever. He says that this agreement for extension was without any knowledge or consent on his part.

For a third defense the answer set up that the note was payable at the office of Drake, Bartow & Co., on September 15, 1903, at which time defendant was able and willing to pay said note, and had funds at the office of said Drake, Bartow & Co. available for the purpose, but that on said date of maturity plaintiff did not make any demand on said defendant or the principal maker for its payment and that no demand by plaintiff upon the defendant for its payment was made until just before the bringing of this action.

On motion the court struck out all of the second and third defenses, and allowed time for the amendment of the answer. The defendant then amended his answer, leaving, however, the defense as to the ownership of the note and the making of no payment thereon exactly as in the original answer. The court struck this entire answer from the files, upon a motion charging that the answer was not filed in good faith and was merely frivolous and calculated for the purpose of invoking the process of the court to secure-delay. It is charged that there was error in sustaining this motion. We can not examine into the facts upon which the court acted upon this motion for the reason that the bill of exceptions showing the evidence, was not filed within the time provided by law. When this answer was stricken off the court gave the defendant time to a -fixed date to file an answer. That time went by, no answer was filed, and thereupon the judgment was entered for the plaintiff upon default. Later a motion was made by the defendant to set aside the default and allow an answer to be filed. This motion was- overruled and error is prosecuted for this action of the court, and the evidence upon which the court acted in refusing to grant the motion is before us. It appears that the defendant was without accurate knowledge of what defense he had, if he had any, and he says that the reason he failed to file an answer within the time fixed by the court was because his efforts to obtain information upon which he could set out definitely what, if any agreement, was made between the plaintiff and the principal maker of the note were unsuccessful. He attempted to take the deposition of the plaintiff for the purpose of obtaining this information. lie followed it up to a point where the plaintiff refused to answer his question. Up to that time the information sought had not been obtained. So far as appears the defendant made no other effort to obtain this information than that which has been stated. It would seem as though he might have made an effort to ascertain from the principal maker of the note what the facts were as to any extension of time, or any failure of consideration, or any payments having been made upon the note.

It is suggested in argument that it was no part of the duty of this defendant to have sought for information from the principal maker of the note, which is of course true. It may be quite probable that he would have met with no better success in taking his deposition than he met with in his effort to take the deposition of the plaintiff, but if he was unable to obtain from anybody the desired information, and so was left without knowledge of what defense he could make, it was his misfortune. The situation seems to be about this: That the defendant was without knowledge of any facts which would constitute a defense to the suit of the plaintiff, and so far as appears, he was without any definite information on the subject. He believed that there had been an agreement to extend the time of payment; perhaps he believed that something had been paid upon the note, and he may have believed that there was a failure of consideration, but if he was without sufficient information to plead these with some definiteness, it was not the duty of the court to open up a judgment which had been taken on default, for the purpose of permitting the defendant to still further seek for knowledge of these matters which it was essential for him to have before he could make any defense. We do not feel we would be justified in holding that the court abused its discretion in refusing to open up the judgment taken on default, and the judgment of the court of common pleas is affirmed.


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    BANK DEPOSIT APPROPRIATED BY BANK EMPLOYEE.
    Circuit Court of Cuyahoga County.
    Lulu May Toole v. The Cleveland Trust Company.
    Decided, February 3, 1908.

      Agency — Banks and Banking — Bank Estopped to Deny .Apparent Authority of Employee.

    1. It is an obvious limitation upon the liability of the principal that he who deals with the agent must act in good faith, respecting every restriction upon the agent’s authority of which he may have notice.
    2. Where a prospective patron goes to the “New Accounts” window in a bank and asks for a certain employee of the bank with whom she is acquainted, and he is called from the rear portion of the bank to the place at the window and there accepts a deposit and issues to her a pass-book of the bank showing that such a deposit has been made by her, the bank is estopped from denying the receipt of the deposit or the authority of the employee to receive it.
    3. The fact that an employee of a bank, who has received from a depositor a sum which he had appropriated to his own use, later makes an entry in the pass-book he had issued the depositor showing the withdrawal of a certain amount which he represents the bank had invested for the depositor, is no defense to rhe bank in an action by the depositor for the amount of the deposit.
    IF. D. McTighe and IF. B. Neff, for plaintiff in error.

      Kline, Tolies & Goff, contra.
    Marvin, J.; Winci-t, J., concurs; ITenry, J.. dissents.
   The parties stand in the same relation to each other in this court that they did in the court below. The pleadings upon which the action was tried were an amended petition, an amended answer to the amended petition and a reply. The allegations on the part of the plaintiff are: that on the 12th day of February, 1903, she, under her then name of Lulu May Black-more, opened a savings account with the defendant, which is a banking corporation, and deposited with the defendant on that day the sum of three thousand dollars; that on the 27th day of April, 1903, that she further deposited with the bank the sum of one thousand dollars. She admits that payments to the amount of $1,293.60 were made to her, and says that the balance of her said deposits, together with interest, is now due from the bank. The defendant by its amended answer admits the deposit of one thousand dollars and denies the deposit of the three thousand dollars, and avers further that if any other deposit was made by the plaintiff the same was withdrawn by h'er. The reply denies the withdrawal of any sum other than that admitted in the petition. Upon these issues the case went to. trial to a jury in the court of common pleas, and upon the evidence the court withdrew from-the jury all consideration of the question of whether anything was due to the plaintiff by reason of her claim of a deposit of three thousand dollars. The remaining issue was submitted to the jury, and on that a verdict was returned for the plaintiff. The error which the plaintiff claims in this proceeding is the withdrawing from the consideration of the jury -all the questions arising in connection with the alleged deposit of three thousand dollars. So as far as this deposit is concerned the only claim made by the plaintiff on the trial was that such deposit was made and that there remained with the bank the sum of two thousand dollars. The real question then which the plaintiff claims should have been submitted to the jury, and which was taken from it by the action of the court, was the question of whether there was in the hands of the bank upon such alleged deposit the said sum of two thousand dollars. On the part of the defendant it-is urged that the court was justified in its action upon two propositions. First, that the three thousand dollars was never deposited. Second, that under the evidence the bank is relieved from liability on account of a withdrawal, from it by the authority of the plaintiff of said entire sum. (As has already been said, the plaintiff admitted that one thousand dollars of the said three thousand dollars deposited had been withdrawn.) Of course, if either of these propositions is correct, there would be no liability on the part of the defendant to the plaintiff, and if upon the evidence introduced by the plaintiff it could be said, as a matter of law, that the bank was not chargeable for this deposit, or if it could be said as a matter of law that there had been a withdrawal of this deposit by the plaintiff or her authorized agent, then the court was justified in directing the jury to pay no attention to these issues. The plaintiff testified that on the 12th of February, 1903, she went to the bank carrying with her a check for the amount of $3,000, for the purpose of depositing it in the bank; that an employee of the bank whom she knew to be a bookkeeper, but further than that she had no knowledge of his special duties in the bank, was a distant relative of hers, and that he had prior to this time said to her that the best thing to do with her money would be to deposit it in this bank. The name of this employee was Boyd. She says that she went with this check to the window where money is received, and that there was an employee of the bank at this window whom she did not know. She inquired for Sir. Boyd; she says, however, that Bojrd was in the bank, back of the partition in which certain windows are situated and through which business is done. The man at this window, she says, then called Boyd, who came to the window. The man who was in this compartment where this window faced the lobby retired from the compartment or cage as it is sometiees called, or. rather he stepped out she says she supposes, she is not able to say certainly that he did. She told Boyd she had come to make this deposit, and she endorsed the check or draft, handed it through the window to Boyd, who gave her one of the regular pass books of the bank which was numbered 9412. This pass book was introduced in evidence as Plaintiff’s Exhibit A, and containing the regulations of the company in print for the guidance of depositors. On the first page prepared for the keeping of accounts are the printed words “The Cleveland Trust Company. In account with,” and then on the opposite page is written the name “Lulu M. Blackmore.” This is in the handwriting of Boyd, so that on opening the book was the heading “The Cleveland Trust Company — Tu account with Lulu M. Blackmore.” These pages are ruled perpendicularly so as to make separate columns, the extreme left-hand column of the páge being headed with the word “Date” the next column with the word “Withdrawn, ’ ’ the third column with the word ‘ ‘ deposit, ’ ’ the fourth column with the word “balance.” In the date column there appears the figures “1908-2-12.” Under the withdrawn column are the figures “3000” and in the balance column the figures “3000” all in the handwriting of Boyd. This book, with the writing indicated, was handed at this window by Boyd to the plaintiff. Thereafter a considerable number of items are entered under dates in the withdrawn column, and near the bottom of the page appears an entry undated, but beginning at the extreme left hand side of the page in the column under the heading of “Date,” and running over into the column of “Withdrawn” in the handwriting of Boyd; “Pd to investment” and just over the last part of the word “investment” and apparently as a part of the same entry, are the figures “2000,” and in the column of “balance” are the figures “5684.” The balance next before this is ‘ ‘ 2056 84 ’ ’ so that if two thousand dollars were withdrawn at this time, the balance appearing upon the book is right. This entry having been made the book was returned by Boyd, as the plaintiff says, to her. Later, appearing under various dates under the heading of “withdrawals” are certain small sums, and in the columns of “balance” these withdrawals up to and including a withdrawal of $9.84 on the 7th of May, 1903, exhaust the $56.84, which was the balance shown after the withdrawal of the $2,000, and in the column of balance at this date are several ciphers.

Under the facts as claimed by the plaintiff, was the bank chargeable with the three thousand dollars as a deposit? It is urged that there was not a prima facie case made out against the defendant for such deposit, or, that if there was it was overcome, by the undisputed evidence introduced on the part of the defendant that Boyd was not authorized by the bank to receive deposits, and that the same was never entered on any of the books of the bank other than the pass book already mentioned, delivered by Boyd to the plaintiff, nor was the money or check ever in fact received by the bank. No claim is made on the part of the defendant nor could any claim be made by it that if Boyd was the agent of the bank in receiving this sum it would not be liable for it notwithstanding it was never in fact credited to plaintiff on the boobs of the bank, or delivered to it, nor is any claim made but that if the bank had clothed Boyd' with the apparent authority to receive this deposit the plaintiff believing that he was so clothed, the bank would not be liable. But, it is urged that Boyd not only was without authority to receive the money but that the bank had not clothed him with any apparent authority to receive it. It is this last proposition which needs consideration here. Boyd was an employee of the bank; his duties were performed back of the partition which separates the part of the room in which the business of t'he bank is transacted from the lobby, or that part of the room which customers enter, and from which, through the openings in the several windows in the partition they pass money to those within, for deposit or payment of indebtedness. He was not at the window at which money is received when the plaintiff came up to that window; another man was there. She asked for Boyd. The man who was at the window presumably was authorized to receive deposits. He called Boyd at her request. Boyd came in to the compartment. Either the man who was in that compartment and called Boyd remained there and presumably saw what Boyd did, or, which is probably the case, he retired from the compartment, apparently leaving Boyd in charge of it, leaving the books which the bank issued to depositors there where Boyd could use them. He knew that the thing ordinarily done by people who came to that window was to deposit money there with and receive these pass books. He was not likely to have left that window and that compartment with Boyd there upon the supposition that this plaintiff desired to visit with Boyd. It was not a place at which he could have supposed that she expected to visit with Boyd or to do any business with him other than that connected with the bank. Knowing this, he apparently left Boyd in charge of this compartment. Boyd, as the plaintiff says, while there was apparently in charge of this compartment to receive this money. It is possible that because she called for Boyd and he came here into that room and was left there by the proper agent of the bank, apparently in charge of it, that the bank can say that she had no right to assume that he was authorized to do the business which was ordinarily done at that window, and which he who thus left Boyd in the compartment, knew was the only proper business to do at this window ? A majority of the court think not. (Judge Henry dissents from this proposition.)

Certainly, the plaintiff’s ease would not be stronger than it now is if Boyd had there said to her that his duties were to receive deposits at that window, for his agency could not be shown by any declaration of his. Suppose that a half dozen clerks in the bank other than the man whose duty it was to receive deposits at that window, had assured her that Boyd was authorized to receive money at the window here, the case would be no stronger than it now is, because she could not rely upon the declarations of these unauthorized men to fix the duties of Boyd or the scope of his agency. Suppose that before she made her deposit, but after Boyd came into the compartment, another party had stepped up to this window and handed money to Boyd for a deposit and he had received it, and had given to the party so depositing one of the pass books of the bank with the entry of the deposit made upon it, it would seem certain that the bank would be held for that deposit, for the reason that Boyd, was there in charge or apparently in charge of the compartment where deposits were properly made. Suppose immediately after this, the plaintiff had delivered her money to Boyd as a deposit and he had .given her the pass book which he did give her, would the fact that Boyd had been called at her request into the room by the man in charge of it, and left apparently in charge, so distinguish her ease from that of the other depositor that it could be said in the one ease the bank was bound and in the other it was not bound?

Suppose that instead of going to the window of the receiving agent for the purpose of making a deposit, she had gone to the window of the paying teller for the purpose of obtaining money upon this check or draft which she had, she had asked for Boyd, the paying teller had called him, left the compartment allowing Boyd to go in to transact whatever.business there was to be transacted with her, that he had left the money drawers open in such wise that they were easily accessible to Boyd, and the plaintiff had asked Boyd to cash this cheek or draft which she had, she first having endorsed it in blank, and he had thereupon taken the money of the bank thus left under his control and had handed to her the amount of her check or draft, to-wit, $3,000, and instead of putting the check or draft in the proper place in the bank he had put it in his own pocketbook and had obtained money on it at some other place and absconded with the money, could the bank have recovered from her the money so delivered to her by Boyd? Certainly if that money was so paid to her by one who had no authority to pay it, and had no apparent authority, that is one not apparently clothed by the bank with authority thus to use its money, the bank could have recovered it from her, but in the ease supposed it seems clear that there could have been no recovery by the bank against her. "We see no reason why the apparent authority to Boyd in the case supposed differs in any wise from the apparent authority of Boyd under the testimony of the plaintiff.

Suppose that a customer goes into a store in this city in which, he knows that John Do"e is an employee, but does not know what his duties are; John Doe is the only employee with whom the customer has any acquaintance. He washes to purchase a coat. He inquires of the man in charge of the coat counter in the store for John Doe. That man calls John Doe_ and himself leaves the counter, so that he does not see what thereafter takes place. The customer tells John Doe what he wants, he buys the coat of him. It is worth $20. lie hands the $20 to John Doe, who puts it in his pocket, and never reports to his employer, but he does report the sale. The merchant makes demand upon the customer later for payment of the $20. The answer is: I paid the $20 to the man who sold me the coat in your store. But, the merchant replies : That man had no authority to sell you a coat nor to collect pay for it. Toil went to the proper counter where coats were on sale and did not ask of the man in charge of that counter to sell you a coat., but you asked him to call John Doe. ITe called him and left the counter and John Doe sold you the coat and took the pay for it. Is it possible that the customer would be liable for the payment of the $20 ? Although as a matter of fact the selling of coats was no part of the duties of John Doe.

In the case of Storage Company v. Cox, 74 Ohio St., 284, there is a discussion of the question of how far one may presume that an agent who assumes to perform a certain duty is authorized to perform such duty. The facts in the case were that Cox went to the place of business' of the storage company, whose business was the storing of goods, to have his goods taken from his home and stored in the warehouse of the company. He asked for the manager. One Smith came forward who was apparently the man in charge. There was nobody else but Smith in authority, and as a matter of fact Smith was authorized to receive goods for storage. The company advertised that not only did it store goods but it insured them, where the owner of the goods so stored desired it. Smith had no authority to contract for such insurance but being in apparent charge of the business he did arrange with the party who stored the goods to have them insured, lie failed to make the insurance. The goods- were destroyed by fire. It was held that the neglect to insure was the neglect of the storage company. In the course of the opinion Judge Shauck, at page 293 uses this language:

“The company fixed the character of its business and employed Smith in the capacity in which he was presented to those who appeared in response to its invitation to the public to store goods with it for hire. It was not an employment of a transient character or to represent it in the conduct of an isolated transaction, but in the general conduct of a business of established and defined character and scope. * * *
“ It is to the relation into which the parties were thus brought by the express and confessedly authorized contract of bailment in connection with the facts found in the statement of the ease that we are to apply the rules of law respecting the apparent authority of an agent. A correct statement of the matured view of that subject will show that it does not have exclusive regard to the immunity of the principal without consideration of the rights of those who accept his invitation to enter into .eon-tract relations with. him. That view is comprehensively and accurately stated in Johnston v. Milwaukee & Wyoming Investment Co., 46 Neb., 480:
" ‘Where a principal has by his voluntary act placed an agent in such a situation that a person of ordinary prudence, conversant with business usages, and the nature of the particular business, is justified in assuming that such agent is authorized to perform on behalf of his principal a particular act, such particular act having been performed the principal is estopped as against such innocent third person from denying the agent’s.authority to perform it.’
“ It is an obvious limitation upon the liability of the principal that he who deals with the agent must act in good faith, respecting every restriction upon the agent’s authortiy of which he may have notice.”

In the case of The Railway Co. v. Bank, 56 O. S., 351, this question is discussed to some extent. In that case certain certificates of stock of a corporation, properly signed and sealed, were left in the care of an agent of the company-, who fraudulently issued them, and it was held that the parties receiving the stock thus issued, were to be protected. Judg’e Minshall at page 383 uses this language:

‘ ‘ The general rule is that a corporation, like a natural person, is liable for the negligence of its agents causing the injury to others where the act done is within the scope of their agency, whether the act be one of omission or commission.”

This is equally true where the act done was within the apparent exercise of the authority of the employee.

In the case of Munn et al v. Burch et al, 25 Ill., page 35, it is said in the syllabus:

“The public are not bound to inquire into the special instructions which the officers -or servants of a bank may have received, as to the manner in which their duties are to be performed.”

In the case of The Manhattan Company v. Lydig, 4th Johnson (New York), page 377, it was held that, where a party placed money in the hands of the bookkeeper of a bank for the purpose of having him make a deposit for the owner of the money the bank was not liable. In this case one Brower was a bookkeeper in the bank. The depositor often handed him money outside of the bank for the purpose of having him deposit it, and Brower actually entered a deposit in the ledger of the bank but he made no entry in the cash book, nor did he ever, in fact, deposit the money, and it is held that the bank was not liable, but the court on page 388 uses this language:

“Brower was the servant of the plaintiffs, when in their employ, and in their office; and for acts there done the plaintiffs (the bank) are answerable.” *

In the ease of East River National Bank v. Gove, 57th New York, 597, this language is used in the syllabus:

“Where one pays a debt due by him to a bank upon the demand of an officer .thereof, whom he finds employed in its business, to said officer, over its counter, without knowledge that the officer’s authority is so limited that he is not authorized to receive the money, it is a payment to the bank and the latter is bound thereby.
“Plaintiff, to the knowledge of defendant, a customer, employed in its bank a paying and receiving teller, ’ the general duty of the latter being to receive moneys paid or deposited. In his absence other officers or clerks acted in his place. Defendant having overdrawn his account by mistake, received a letter from the paying teller requesting him to call. ITe went to the paying* teller at the bank and at his request paid him over the counter the amount required to rectify the error; this was not entered on the books of the bank. It did not appear that the receiving" teller was in the bank. ’ ’

And at page 601, Judge Earl uses this language in the opinion:'

‘ ‘ The defendant went to the bank, he found behind the counter the paying teller who asked him to pay a demand the bank had against him, and -he then paid it. It would be a very inconvenient and unreasonable rule to hold that a bank was not bound by such payment. If this payment was not binding upon the bank, it would not have been if Van Orden had declared to the defendant that he was authorized to receive it; and if every clerk then in the bank except'the cashier had, upon the inquiry of the defendant, made the same declaration. If he had gone to the bank to pay a note and the paying teller had gone to the vault and got the note, taken the money and surrendered up the note upon the same principal such a payment would not have bound the bank. Banks must be held responsible for the conduct of their officers within the scope of their apparent authority. When one goes into a bank and finds behind the counter one of its officers employed in its business, and upon his demand pays a debt due the bank in good faith, without any knowledge that the officer’s authority is so limited that he has no right to receive it, he must be protected and the bank must be bound by the payment. ’ ’

These .authorities and considerations lead a majority of the court to the conclusion that under the evidence introduced by the plaintiff, a case was made to hold the bank for the deposit.

There remains for consideration the question whether the bank has been relieved from the obligation which we find it assumed when this pass book was delivered by Boyd to the plaintiff. It should be said in this connection that the several withdrawals entered in the pass book, other than the two thousand dollars, were actually paid by the hand of Boyd, either to the plaintiff or those authorized by her to receive it. Presumably these payments were made out of Boyd’s own money, though the plaintiff supposed they were paid out of the money of the bank, so that there can not be said to have been any ratification of Boyd’s act in taking the three thousand dollars because of any credits upon it or payments made thereafter when it was so deposited. Presumably the bank had no knowledge of these payments.

If the bank has been released from its obligation to pay the two thousand dollars, it has been so released by some act of the plaintiff. The testimony of the plaintiff was, that Boyd said to her that the bank would invest her money with its own in such wise that she would receive a large per cent, upon it. Her testimony showed that each time a withdrawal was entered by Boyd he handed the book back to her, and that she understood the figures under the “withdrawal” column indicated that she had withdrawn the amount represented by such figures, and that there remained the balance that was represented by the figures in the balance column. So that when Boyd made the entry ‘1 Pd. to investment 2000” and passed the book back to her the balance showed that the two thousand dollars had been deducted from the amount theretofore shown to be a balance, and was understood by her as meaning that there was still a balance uninvested of $56.84. But she says, that she understood that the two thousand dollars indicated in the entry, was invested by the bank. Her testimony shows that she had no very distinct idea of what was to be done, but in some way she understood that through the bank her money to the extent of two thousand dollars, would be invested in some very profitable or large dividend paying investment. It appears that for sometime after this entry, Boyd paid her on the first day of each month, $30, representing to her that this was the dividend upon her invested two thousand dollars. So far as it appears from the evidence, however, nobody did make any investment of the two thousand dollars, certainly the bank made no such investment of it, nor did Boyd. When fairly considered, her testimony is that Boyd was not authorized alone to make any such investment for her.

If the bank is to escape liability here on the ground of the withdrawal of the two thousand dollars, it escapes not because of any payment it ever made, not because of any investment it ever made, and not because of any payment or investment it ever made, to or for the plaintiff by Boyd, or anybody else. Though the bank i,s chargeable with this money it never had it, and it never paid it out either to the plaintiff or anybody else. It appears that later the plaintiff said to Boyd that she had no evidence of any investment that had been made-of this two thousand dollars, whereupon he made an' entry in another pass book which the trust company had issued, to the plaintiff, in the deposit column of two thousand dollars. This under date of January 4, 1904. This, however, as we view it, neither increased nor lessened the responsibility of the defendant to the plaintiff. We think the testimony of the plaintiff was such that, if believed, a jury would have been justified in finding that the plaintiff had never received for investment by herself, or by anybody authorized to act for her, the two thousand dollars, nor had she done anything to estop herself from claiming that the amount was still owing to her, except that the same had been reduced by the $30 per month payments, which, as has already been said, Boyd had made to her.

The result is that the judgment of the court of common pleas is reversed for error in directing the jury to disregard entirely any claim founded upon the three thousand dollars deposit.

Judge Henry dissents from this judgment of reversal though he concurs in the proposition that the evidence of withdrawals did not justify the court in taking this issue from the jury, but that the evidence did not show that the bank was ever liable for the money, evidenced by this entry of three thousand dollars in the pass book.