author: By MILLER, J.

text:
    STANLEY v. GUSTIN et.
    Ohio Appeals, Second District, Montgomery County.
    No. 2015.
    Decided December 10, 1948.
    Oldham & Oldham, Carl W. Norman, Dayton, for plaintiffappellee.
    Jerome T. Miller, Dayton, for defendants-appellants.
   OPINION

By MILLER, J.

This is a law appeal from a judgment of the Court of Common Pleas of Montgomery County. The action was one for damages brought by a tenant against the landlord for forcibly evicting the tenant. A jury trial was had which resulted in a verdict for the plaintiff. The judgment was duly entered and the appeal is from this judgment.

The record discloses that Florence M. Stanley, the plaintiffappellee, rented a one room furnished apartment from the defendants-appellants, Mabel K. and George V. Gustin. The apartment was occupied by her as a home. Later certain differences arose between the parties which resulted in a notice being given to the plaintiff to vacate at the end of her rental period. The sufficiency of the notice was not disputed and the trial court instructed the jury that the plaintiff’s term had expired. Upon the failure of the plaintiff to vacate the apartment at the end of the term and in accordance with the notice previously given, the defendants went to the plaintiff’s apartment and receiving no response to the alarm given at the door, forcibly entered the same by breaking the lock on the door. The apartment was occupied by the plaintiff at the time of the entry, and in her presence the defendants removed all of her belongings from the apartment. She offered no resistance other than to refuse admittance to the defendants.

The first alleged error is in the refusal of the Court to give three special charges to the jury, all to the effect that the defendants might re-enter and might repossess the property by the use of such force as may be necessary provided that in so doing no act was committed amounting to a breach of the peace. It is stated in 24 O. Jur. Section 493, p. 1250, that while the. Ohio cases are not entirely consistent, the great weight of authority supports this view. One of the cases cited as authority is that of Simmons v. Thompson, 1 Handy 521, 12 Ohio Dec. 268, wherein it is said:

“Upon a careful examination of numerous cases on this subject, both English and American, we have not found one in which it has been held that a person having the right of possession to land entered upon by another, or kept from him unlawfully by a tenant holding over, might not enter and take possession, using as much force as should be necessary for that purpose; provided that, in so doing, he committed no act amounting to a breach of the peace, or leading directly thereto. And in all cases where an action has been sustained in favor of the party thus entered upon, either he himself or some person in his behalf, has been personally in possession of the premises, or his goods have been removed in such manner as to occasion them special damage, and thus caused the party to be regarded as a trespasser ab initio.”

It will be noted that the Court said the actions by the tenant have been sustained where “he himself or some person in his behalf, has been personally in possession of the premises”. The facts in the case at bar are the same in this regard. We are of the opinion that the forcible breaking and entering of the plaintiff’s apartment while in her actual possession, all of which is admitted by the defendants, constituted a breach of the peace as a matter of law, and the Court properly rejected the special charges even though the principle of law was correctly pronounced. This, however, we are not required to decide.

The most recent case we have been able to find on this proposition is that of Ratnour v. Fissell, 5 Abs 795, which holds that §10449 GC authorizes an- action in forcible entry and detainer when the tenant refuses to vacate; that the statute must be followed and any other procedure to regain possession of the premises would result in taking the law in one’s own hand and therefore be illegal. Should this pronouncement of the law be correct, again the special requests were properly refused.

The only other error assigned by the appellants which is covered in their brief is that the court erred in permitting two witnesses from the office of Rent Control to refuse to answer certain questions concerning complaints made to their office by the plaintiff for the reason that their records were confidential and private. Regardless of the admissibility of these records we cannot say that their rejection constituted prejudicial error. Clearly, they would not alter the remedy possessed by these defendants in order to regain possession of their property. Neither could they be the basis for damages alleged under the first cause of action in the cross-petition. The record discloses that the plaintiff made a number of reports to the office of Rent Control but none of which were acted upon to the detriment of these defendants. The actual contents of the report, therefore, do not become pertinent.

We find that the trial court committed no prejudicial error in rejecting this testimony. We find no error in the record and the judgment is affirmed.

WISEMAN, PJ, and HORNBECK, J, concur.


source: Caselaw Access Project

author: By GUERNSEY, J:

license: Public Domain

text:
    STATE, Plaintiff-Appellee, v. SINGLETON, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 21141.
    Decided March 30, 1949.

      Frank T. Cullitan, County Pros., Saul S. Danaceau, Cleveland, for plaintiff-appellee.
    Stephen M. Young, Cleveland, for defendant-appellant.
    (DOYLE, PJ, of the 9th District: GUERNSEY, J, MIDDLETON, J, of the 3rd District, sitting by designation in the 8th District.)
   OPINION

By GUERNSEY, J:

An indictment against the defendant, John W. Singleton, on a charge of larceny by trick (§12447-1 GC) was returned by the Grand Jury of Cuyahoga County at the January Term of 1948 and presented to the court on February 5, 1948. The indictment contained fifteen counts, in each of which there was a charge which, except for a different name, date and amount in each instance, read as follows:

“Indictment for Larceny by trick.— (§12447-1 GC with Counts.)
The State of Ohio
ss
Cuyahoga County

On the term of January in the year of our Lord One Thousand' Nine Hundred and Forty-Eight.

The Jurors of the Grand Jury of the State of Ohio, within and for the body of the county aforesaid, on their oaths, In the Name and By the Authority of the State of Ohio,

Do find and present that John W. Singleton, on or about the 8th day of July, 1947, at the County aforesaid, did unlawfully obtain possession of certain money in the amount and value of Twenty-one Hundred and Twenty-Five Dollars from Charles L. Bradley, the property of Charles L. Bradley and did obtain said property from the said Charles L. Bradley with the consent of the said Charles L. Bradley, which consent the said John W. Singleton induced by false and fraudulent representations and pretenses, with the intent of permanently depriving said Charles L. Bradley of said Twenty-One Hundred and Twenty-Five Dollars ($2125.00) contrary to the form the statute in such case made and provided, and against the peace and dignity of the State of Ohio.”

On March 16, 1948, the Prosecuting Attorney furnished and filed an Amended Bill of Particulars, being the Bill of Particulars of the offense charged in the indictment upon which the cause was submitted, which reads as follows:

“Responding to the application of the defendant, John W. Singleton, for a bill of particulars, the Prosecuting Attorney says that the said defendant, John W. Singleton, during the period of time beginning with February, 1947 and ending with November, 1947, both months inclusive, carried on and carried out a scheme and artifice to trick and to defraud each and all of the persons named in the various counts in the indictment and numerous other persons, all of whom shall be hereinafter referred to as victims, the said scheme and artifice being a swindle.

The defendant, John W. Singleton, in the County of Cuyahoga and State of Ohio and within the period of time aforesaid, set up an extensive business and establishment with agents, employees and associates acting under his direction and control and proceeded to operate ostensibly as a dealer in automobiles using in the course of his activities such names as J. & W. Sales Service, Louis Auto Sales and J. W. Singleton Motors Inc.

The defendant, John W. Singleton, falsely and fraudulently represented and pretended to each of the said victims that he, the said John W. Singleton, was an automobile dealer licensed by the State of Ohio.

The defendant, John S. Singleton, falsely and fraudulently represented and pretended to each of the said victims that he would deliver a designated new automobile to each of said victims for the money given him or his agents or employees by each of the said victims.

The said defendant, John W. Singleton, falsely and fraudulently represented and pretended to each of the said victims that such designated new automobile would be so delivered to each of the said victims within ten weeks, and falsely and fraudulently represented and pretended that in the event such delivery was not made the moneys would be refunded to each of said victims within said period of ten weeks. During the earlier part of the aforesaid period beginning with February, 1947 and ending with November, 1947, the precise time being unknown, the period of time within which the automobiles were to be delivered or the moneys refunded was six weeks; and for a short period of time during the earliest portion of said period of time, the precise time being unknown, such deliveries or refunds were to be made within four weeks.

To entice the said victims and to induce said victims to turn over to the defendant their moneys, the said defendant, John W. Singleton, caused to be delivered to numerous other persons practically new automobiles at prices substantially less than the prices paid for said automobiles by the said defendant, John W. Singleton, the said John W. Singleton appropriating part of the funds of said victims to make payment therefore and appropriating to his own use and purposes the remaining part of the funds of the said victims; and the said defendant, John W. Singleton, did not intend to deliver said automobiles to the said victims and did not intend to refund said moneys to the said victims.

The defendant, John W. Singleton, carried out said scheme and artifice and made said false and fraudulent representation and pretenses by himself and by and through his agents, employees and associates.

The defendant, John W. Singleton, enticed his numerous victims, including each and every one of the persons named in the indictment, by means of the scheme and artifice above described, and by the use of fraudulent representations and pretenses, above set forth, to turn over to the said defendant, John W. Singleton, their moneys in cash, or as the proceeds of official bank checks,, or certified checks or other bank checks, all such payments being made in accordance with the directions and instructions of the said defendant, John W. Singleton.

The defendant, John W. Singleton, obtained possession of the moneys of the persons listed in the various counts in the indictment, inducing their consent by false and fraudulent representations and pretenses, in the amounts and at the approximate times as follows:

Name: Amount: Approximate Time:
Charles L. Bradley 2125.00 July 8, 1947
Anton Chandek 1841.00 August 9, 1947
Martin Halko 2285.00 July 1, 1947
John Krowiak 2285.00 July 29, 1947
Joseph Potochnik 1770.00 July 24, 1947
James Kaatky 2300.00 July 10, 1947
Ralph Everstine 2175.00 June 23, 1947
Rudolph J. Kuk 2250.00 August 25,1947
Joseph Kostyk 1500.00 August 27,1947
Evelyn D. Schweitz 2450.00 Sept. 3, 1947
Francis Kavanaugh 1650.00 June 21, 1947
Fred Goforth 1864.00 July 29, 1947
Edward Tysl 1975.00 July 1, 1947
Harry A. Overman 2285.00 Sept. 26, 1947
Rose Boehm 2220.00 June 26, 1947
Frank T. Cullitan, Prosecuting Attorney of Cuyahoga County, Ohio.”

On March 20, 1948, the defendant filed a demurrer. On March 31, 1948, the court overruled said demurrer.

On April 2, 1948, the defendant entered his plea of not guilty and on April 6, 1948, the trial proceeded.

Because of the absence of Rose Boehm from the state, at the time of trial, Count No. 15 on motion of the prosecuting attorney withdrawn from the indictment.

On April 23, 1948, the jury found the defendant guilty of larceny by trick on each of the fourteen counts as charged in the indictment.

On April 24, 1948, a motion for new trial was filed.

On May 5, 1948, the court on hearing of the motion for a new trial overruled the same and rendered judgment on the verdict of the jury, sentencing the defendant to the Ohio State Penitentiary.

This is the judgment from which this appeal is taken.

The defendant appellant assigns error in the 'following particulars:

1. The court erred in admitting the testimony of the defendant taken in bankruptcy court.

2. There was no proof of any larceny by trick.

3. Error in the general charge, and in refusing requests to charge of the defendant.

4. The court erred in the admission of evidence.

5. Irregularity in the proceedings of the court.

6. Other errors of law.

7. The judgment is not sustained by sufficient evidence and is contrary to law.

These assignments of error will be considered in the order mentioned, and such of the evidence in the case as is necessary to a consideration of any of the assignments will be discussed under that assignment.

1. As appears from the bill of exceptions, the state offered and the court admitted the testimony of Henry Toll, a court reporter, of the testimony given by the defendant, John W. Singleton, at a hearing before Carl D. Friebolin, a referee in bankruptcy, Wednesday, Dec. 3, 1947 at 9:30 o’clock A. M., and at an adjournment thereof to Friday, Dec. 8, 1947.

Further testimony in the case by the said Henry Toll and Ida L. Drake, a clerk of the Bankruptcy Court, discloses that a petition in involuntary bankruptcy had been filed during the month of November, 1947 in the District Court of the United States for the Northern District of Ohio, Eastern Division, against the defendant, John W. Singleton, doing business as Louis Auto Sales & Service Company and doing business as J. W. Singleton Motors Company, by three of his creditors and that he was adjudged a bankrupt, under the above name and style, during the month of December, 1947.

It further appears that this hearing was held prior to an adjudication of bankruptcy. It was at this hearing that said Singleton consented to be adjudged a bankrupt.

It further' appears that the first meeting of creditors of the bankrupt was not held until January 13, 1948.

The witness was later called for cross-examination by the defendant and the defendant cross-examined him as to the testimony given by said John W. Singleton at the first meeting of creditors held on Jan. 13, 1948; and after the defendant had examined the witness as to such testimony the state was permitted to examine the witness with reference to further testimony given by said John W. Singleton at said meeting of Jan. 13th.

Under this first assignment of error the defendant contends the court erred in admitting evidence of Henry Toll as to the testimony of the defendant, John W. Singleton, at the hearing before the referee on December 3, 1947 and also erred in admitting the testimony of Henry Toll on examination by the state, as to the testimony of defendant, Singleton, at the first meeting of the creditors on January 13, 1948.

As supporting this contention he relies on the following provision of the Bankruptcy Act as follows:

“The bankrupt shall * * * (10) at the first meeting of his creditors, at the hearing upon objection, if any, to his discharge, and at such other times as the court shall order, submit to an examination- concerning the conducting of his business, the cause of his bankruptcy, his dealing with his creditors and other persons, the amount, kind and whereabouts of his property, and in addition all matters which may affect the administration and settlement of his estate or the granting of his discharge; but no testimony given by him shall be offered in evidence, against him in any criminal proceeding, except such testimony as may be given by him in the hearing of objections, if any, to his discharge.”
Title Eleven, Section 25 (9) Subsection (10) 3 F. C. A. 9.”

Under the provisions of the Bankruptcy Act a person is not a bankrupt within the meaning of the Act until he has been adjudicated bankrupt.

By the terms of the above quoted provisions it is only the testimony of the bankrupt that shall not be offered in evidence against him in any criminal proceeding, so at the hearing of Dec. 3, 1947, and its adjournment to Dec. 8, 1947, the testimony of the defendant, Singleton, did not come within the purview or protection of this provision. He stood at that time as an ordinary litigant in an adverse proceeding in court, and his testimony at the hearing on those dates was properly offered in evidence against him.

By examining Henry Toll as .to the testimony of the defendant Singleton, at the first creditors’ meeting on Jan. 13, 1948, the defendant waived the immunity afforded him by the above quoted provision of the Bankruptcy-Act.

As the defendant elicited part of the testimony of the defendant at said meeting of creditors on January 13, 1948, on his cross-examination, the state had the right to offer the entire testimony or any part thereof in evidence.

Wigmore on Evidence, Second Edition, Volume 1, page 189.

Wharton’s Criminal Evidence, Eleventh Edition, Volume 1, page 613.

Jones’ Commentary on Evidence, pages 4589 et seq.

State v. Hubbard, 126 Kansas 1293; 266 Pacific, 939; 58 A. L. R. 327.

Morey v. State, 72 Florida 45; 72 Southern 490.

This assignment is therefore without merit.

In his second assignment of error the appellant assigns error in that there was no proof of any larceny by trick. In support of this assignment he makes four general contentions which may be summarized as follows:

(a) In order to constitute larceny by trick a false pretense must relate to a past event or an existing fact and in this case there is no proof of any false pretense relating to a past event or an existing fact.

(b) As the testimony of the various persons named in the various counts of the indictment, and of other witnesses who purchased automobiles from the defendant, shows that each of them, knowing that the automobiles purchased by them were not then in stock and would not be delivered to them until a fixed date in the future, upon the representations of the salesmen employed by the defendant that if such automobiles were not delivered to them by the time fixed for delivery, the amount of the purchase price thereof paid by them would be returned to them upon demand and that interest-bearing notes of the seller for the amount of the purchase price would be given by the seller to assure the performance of said agreement on the part of the seller, purchased such automobiles and paid the purchase price thereof by cash or certified check with the understanding and agreement that the automobiles were not to be delivered until a fixed date in the future, and that if they were not delivered by such time the amount of the purchase price thereof was to be returned to them upon demand, and accepted interest-bearing notes in the principal sum of the purchase price paid by them, payable on the future date fixed for delivery of such automobiles, to assure the performance of such understanding and agreement on the part of the seller, they must be considered in law as having voluntarily parted with the possession and title to the purchase price, in the same manner as one loaning money, when making a loan, parts with the possession and title to his money and not as being induced thereto by false or fraudulent representation, pretense, token or writing.

(c) The evidence shows that the defendant did not personally make the sales of the automobiles in question, but that such sales were made by salesmen employed by him and such representations as were made in connection with such sales were made by such salesmen in good faith and without intent to defraud, and consequently there is a failure of proof that the defendant made the false or fraudulent representations he is charged with making.

(d) Failure of proof in other particulars.

2. The indictment is based on the provisions of §12447-1 GC. The language of this statute as as follows:

“Sec. 12447-1 GC. Larceny by trick; penalty.
Whoever obtains possession of, or title to, anything of value with the consent of the person from whom he obtained it, provided he induced such consent by a false or fraudulent representation, pretense, token or writing, is guilty of larceny by trick, and, if the value of the thing obtained by such false or fraudulent representation, pretense, token or writing is thirty-five dollars or more, shall be imprisoned in the penitentiary not less than one year nor more than seven years, or, if the value is less than that sum, be fined not more than two hundred dollars or imprisoned not more than thirty days, or both.”

This section appears in Volume 120 Ohio Laws, at page 444. It also appears in the pocket supplement to Volume 10 of Page’s Ohio Code Annotated. It became effective September 16, 1943. It is a new statute prescribing a new offense.

In this state there are no crimes save those prescribed by statute.

In the Supplement to Page’s Code, in which the statute appears, no comparative legislation of other states is noted, and we have been unable to find any, so the statute is apparently not patterned after legislation of any other state.

Under the provisions of §12447 GC prescribing the offense of larceny, to constitute larceny in a case where the owner voluntarily parts with the possession of his property, two other conditions are essential.

1. The owner at the time of parting with the possession, must expect and intend that the thing delivered will be returned to him or disposed of under his direction for his benefit:

2. The person taking the possession must at the time intend to deprive the owner of his property in the thing delivered.

But where the owner intends to transfer, not the possession merely, but. also the title to the property, although induced thereto by fraud and fraudulent pretenses of the taker, the taking' and carrying away do not constitute a larceny. In such case the title vests in the fraudulent taker and he cannot be convicted of the crime of larceny for the simple reason that, at the time of the transaction, he did not take and carry away the goods of another person but the goods of himself.

Kellogg v. State, 26 Oh St 15.

Under the provisions of §13104 GC, prescribing the offense of obtaining property by false pretenses, such false pretense must relate to a past event or an existing fact. Any representation or assurance in relation to a future transaction is not included.

Dillingham v. State, 5 Oh St 280; Winnett v. State, 13 C. C. 516, 10 C. D. 245; Affirmed, State v. Winnett, 62 Oh St 650.

As is commonly known, many swindles are perpetrated by inducing the owner to part with the possession' or title to his property by means of false or fraudulent representations as to future events or transactions which, as shown above, are not punishable under either the larceny statute or the statute relating to obtaining property by false pretenses, and it is apparent that the legislature enacted §12447-1 GC, above mentioned, for the purpose of remedying the deficiencies and inadequacies of said statutes in this respect and making such swindles penal offenses.

This new statute differs from the larceny statute in that if either the possession or the title to property is obtained with the consent of the person from whom it is obtained, it is subject to its provisions and it differs from the statute prescribing the offense of obtaining property by false pretenses in that the false pretense statute prescribes an offense of obtaining property “by false pretense with intent to defraud” while it prescribes an offense of obtaining property with the consent of the person from whom it is obtained, provided such consent is induced “by a false or fraudulent representata'tion, pretense, token or writing.”

As used in §12447-1 GC, token means a document or sign of the existence of a fact, and a false token is a false document or sign of the existence of a fact, — in general use for the purpose of a fraud.

The devising or intention to devise a scheme or artifice to defraud, or for obtaining money or property by means of a false or fraudulent representation, pretense, token, or writing, by the actor, is necessarily implied in this section as a condition precedent to the making by the actor of any false or fraudulent representation, pretense, token or writing.

Under the provisions of this section, any representation, pretense, token or writing, made by the actor in furtherance of a scheme or artifice to defraud, is a fraudulent representation, pretense, token or writing, and may, depending upon the specific character- thereof, be both false and fraudulent, and a fraudulent representation, pretense, token or writing may relate to future facts, events and transactions, as well as to existing facts and past events, and may be promissory in character.

The fraudulent conduct proscribed by §12447-1 GC, except that it does not involve the use of the mails in its execution, is therefore similar to the fraudulent conduct proscribed by Section 215 of the U. S. Criminal Code (Sec. 338, U. S. C. A. Vol. 18 page 134) the pertinent part of which reads as follows:

“Whoever, having devised or intending to devise any scheme, or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises * * * shall for the purpose of executing such scheme or artifice, or attempting to do so, places, or causes to be placed any letter * * * whether addressed to any person residing within or outside the United States, in any post office * * * to be sent or delivered by the post office establishment of ’the United States * * * shall be fined not more than one thousand dollars or imprisoned not more than five years, or both.”

While in §12447-1 GC, the making of false or fraudulent tokens or writings is included in the classes of fraudulent conduct which are not specifically- included in the classes of fraudulent conduct proscribed in Section 215 of the U. S. Criminal Code, the promotion of which through the use of the mails is thereby penalized; and although Section 215 of the U. S. Criminal Code includes false or fraudulent promises in the classes of fraudulent conduct proscribed by it, which are not included in the classes of fraudulent conduct proscribed by §12447-1 GC, it is obvious that the fraudulent conduct which is proscribed in each of said sections is of the same general character, and that the decisions applicable to the interpretation and construction of Section 215 of the U. S. Criminal Code are therefore applicable to the interpretation and construction of §12447-1 GC.

Illustrative of these decisions are the following:

In order to establish a scheme to ‘defraud’ within the scope of Section 215 U. S. Criminal Code, it is not necessary that there should be an actual misrepresentation of an existing fact, or that the elements necessary to constitute common law action of ‘deceit’ exist, since this section prohibits any scheme or artifice to defraud.

U. S. v. McCoy, D. C. Mich. 1942; 45 F. Supp. 1007. The crime consists in the making of those promises which the parties never intended to perform, or false representations which they never intended to make good.

Barnard v. U. S. (C. C. A. 9) 16 F. (2d) 451.

Fraud is established by showing that defendant knew that he would not perform a promissory representation.

Knickerbocker Merchandising Co. v. U. S. (C. C. A. 2) 13 F. (2d) 544.

False representations as to intended us of funds collected held to establish a fraudulent scheme.

U. S. v. Rosenfeld (C. C. A. 2) 57 F. (2d) 74.

To use the mails in order to carry out a scheme of getting money by the making of promises or agreements which, whether known to be impossible of performance or not, there is no intention to perform, is a forbidden use of the facilities of the post office department.

Durand v. United States, 161 U. S. 306, 313; L. Ed. 709, 711; 16 Sup. Court Rep. 508.

A scheme or artifice to defraud, within the meaning of Sec. 215 U. S. Criminal Code, respecting unlawful use of the mails, may be devised through mere representations and promises as to the future, although no representation as to an existing fact is made, where there is an attempt thereby to entrap the unwary and to secure money from them on the faith of the scheme, which is glittering and attractive in form, yet unreal and deceptive in fact and known to the person devising it to be such.

Durland v. United States, 161 U. S. 305, 40 L. Ed. 700.

Evidence to support a conviction of using mails to defraud in the sale of rabbits and guinea pigs at $5.00 each, under promise to buy all progeny at $2.50 each, with intent not to keep the promise. Defendant contended that he acted in good faith, but it was impossible to fulfill the promises. “What was in his mind could, of course, only be judged by how he dealt with his customers and what he did with the incoming flood of money.”

Rowan v. U. S. (C. C. A. 7) 227 Fed. 777, 25 A. L. R. 876.

Considered in the light of these decisions, the gravamen of the offense proscribed in §12447-1 GC, and charged in the indictment and correctly charged by the trial court in the instant case is:

That the possession or title to the property was obtained by the person charged, with the consent of the person from whom it is charged it was obtained, and that such consent was induced by false or fraudulent representation, pretense, token or writing; and that the false or fraudulent representation, pretense, token or writing, was made with the specific intention of procuring the consent of the person from whom the property was obtained, to part with the possession or title; and the false or fraudulent representation, pretense. token or writing, was such as to be a decisive influence on the mind of the party consenting, so that without its weight he would not have consented to part with his property.

That there was an intent at the time of obtaining possession or title to the property, on the part of the person charged, to deprive the person from whom it was obtained, of his property, and permanently to appropriate it to his own use. That such false and fraudulent representation, pretense, token, or writing, consisted in making a representation, pretense, token, or writing, which the person charged, knew to be false or never intended to carry out, whichever the case may be, with intent to induce the person from whom the property was obtained, to give up possession and-title to the property.

It consists of deception or artifice deliberately perpetrated upon the person from whom the possession or title to the property is obtained, for the purpose of obtaining the possession or title to said property for the defendant’s own use.

As appears from the foregoing discussion, under the provisions of §12447-1 GC, irrespective of whether a false pretense must relate to a past event or an existing fact, a fraudulent representation pretense, token or writing, does not have to relate to past events or existing facts but may relate to future facts, events and transactions, so that a conviction of the offense prescribed by said section and charged in the indictment, in this case, may be had regardless of whether there is proof of a false pretense relating to a past event or to an existing fact.

(b) There is evidence tending to prove beyond a reasonable doubt that the giving of the notes to purchasers of automobiles as hereinbefore mentioned, was a mere incident in the scheme to defraud devised by the defendant. As the giving of the notes was a mere incident in a fraudulent scheme it does not prevent the act of the defendant from being larceny by trick.

Young v. State, 44 Oh Ap 1.

(Motion for leave to file petition in error overruled June 15, 1932.)

Stexher v. State of Wisconsin, 70 A. L. R. 203 and cases cited in annotations to this case 70 A. L. R. 208.

(c) While the defendant did not personally make the representations in question, and such representations were made, in apparent good faith without intent to defraud, by the salesmen employed by the defendant, there is evidence tending to prove beyond a reasonable doubt that the representations made by the salesmen were made at the express direction of the defendant and on his behalf; that the defendant had approximately only $1000.00 in capital when he first engaged in the business of buying and selling automobiles, and that, such business continued for approximately eight months; that in carrying on and conducting such business the defendant out of the proceeds of automobiles sold through such representations, paid, for such automobiles as were delivered by him, prices greatly in excess of the amounts for which he sold them; and out of such proceeds also paid to himself and some of his employees, excessive salaries; and made, to some-of his employees and other persons, gifts of expensive automobiles and other expensive merchandise; that he" converted large portions of such proceeds to his own use for purposes; other than those connected with his ostensible business off buying, selling and servicing automobiles; that the defendant, kept what purported to be books of said business which dM not reflect the prices paid by him for such automobiles as he purchased and delivered; and that during the period he was; engaged in such business, which, as above stated, was approximately eight months, failed to deliver automobiles for which he had received approximately one million dollars in advance payment, and upon being adjudicated a bankrupt following the close of his said business, was found to have assets considerably less than one hundred thousand dollars.

From this evidence the jury was warranted in finding beyond a reasonable doubt that the representations made by the various salesmen employed by the defendant were made by the defendant, and that they were made by him with intent, at the time, of obtaining possession and title to the property of the persons mentioned in the various counts of the indictment, from them respectively, with their respective consents and to appropriate it to his own use, and that such representations were fraudulent in that the defendant never intended to carry them out.

(d) The evidence in this case is so voluminous that it is impossible to discuss it in detail, so that in considering the appellant’s contention of failure of proof in other respects we deem it sufficient to say that, interpreting and construing §12447-1 GC, as we have interpreted and construed it, and as the trial court in its charge correctly interpreted and construed it, there is competent, credible and substantial evidence of such convincing character tending to prove each and every essential element of the offense charged in the indictment (as outlined in the amended bill of particulars filed herein) that the jury was warranted in finding the defendant guilty beyond a reasonable doubt, of the offense charged in the indictment.

For the reasons mentioned, this second assignment of error is without merit.

3. The third assignment of error relates to claimed errors in the general charge and the refusal of the trial court to give special instructions to the jury, requested by the defendant after the argument had been completed.

Considering the general charge as a whole, we find no error in it prejudicial to the defendant.

Such portions of the special instructions requested by the defendant, as were correct statements of law applicable to the issues in the case, were included in the general charge; and such of the requested instructions as were not correct were properly refused by the court.

This- assignment of error is therefore without merit.

4. The fourth assignment of error is that the court erred in the admission of evidence.

We have already considered the first assignment of error,, in which it is charged that the court erred in the admission, of the testimony of the official stenographer as to the testimony of the defendant taken in bankruptcy court, and have-held such testimony was properly admitted.

The defendant, under this assignment, makes the further contention that the court erred in the admission of the testimony of persons other than the persons named in the various counts of the indictment, as to transactions with the defendant which were of a similar nature to .the transactions of the persons named in such counts, with the defendant.

Such testimony was admissible to show the nature and character of the operations of the defendant, and was admissible under the provisions of §13444-19 GC, the “similar offenses” or ‘like act’ statute.

Error is also claimed in the admission of the testimony of Detroit automobile dealers showing the prices at which they sold automobiles to the defendant to be greatly in excess of the prices for which the defendant sold them, and the testimony of various persons showing how the defendant squandered the money of persons who had paid the purchase price of automobiles in advance with their orders and who never received such automobiles.

This evidence was admissible to show the intent of the defendant to defraud, as charged in the indictment, and the court properly admitted it.

This assignment of error is also without merit.

5. The fifth assignment of error charges irregularity in proceedings of the court in the following particulars:

(a) In permitting Ida L. Drake, Clerk of the Bankruptcy Court to answer questions pertaining to the bankruptcy of one Joseph Laronge and the Van Sweringens.

(b) The sustaining of an objection of the state to the argument of defense counsel, on the ground that defense counsel had incorrectly stated the law.

(c) In the final argument of the prosecuting attorney in which he made a reference to “Ponzi” in characterizing the fraud perpetrated by the defendant.

The court properly refused to admit testimony as to the bankruptcies of Joseph Laronge and the Van Sweringens as such testimony was irrelevant to the issues in this case.

In his argument, counsel for the defendant made the following statement:

“I do want you to be duly impressed with the facts here, and if you are duly impressed with the facts it will appear to you that there was no misrepresentation made here by any of these salesmen as to a past or existing fact. They were wrong about the facts.”

The state objected to this line of argument on the ground that it was not a correct statement of the law, and the court then suggested to counsel to be a little more careful on quoting the law.

The argument made by counsel for the defendant had a tendency to lead the jury to believe that they were limited, in their consideration, to misrepresentation of past or existing facts, while under the law as hereinbefore noted, their consideration was not so limited.

The suggestion made by the court to counsel-was therefore proper.

Counsel for the defense, in his argument, had referred to “Ponzi” so that the use of this word by the prosecuting attorney in his answering argument was proper rebuttal. Furthermore, the use of the name “Ponzi” was a apt characterization of a type of swindle with which the defendant was charged.

This assignment of error is also without merit.

6. The sixth assignment of error is entitled “For other errors of Law” but the appellant only specifies errors in overruling defendant’s motion for a new trial and other errors which appear on the face of the record.

The grounds of the motion for a new trial are all incorporated in appellant’s assignments of error and have been heretofore discussed and disposed of adversely to the appellant.

The appellant does not argue any error which appears on the face of the record and the court under its statutory prerogative will not consider such alleged errors.

7. For a seventh assignment of error the appellant contends that the judgment is not sustained by sufficient evidence and is contrary to law.

We have already determined that the judgment is sustained by evidence tending to prove the guilt of defendant beyond a reasonable doubt. Our previous holdings show that the judgment is not contrary to law but so that there may be no question as to the effect of our previous holding we now specifically hold that the judgment is not contrary to law.

Finding no prejudicial error in any of the particulars specified and argued in appellant’s brief, the judgment of common pleas court will be affirmed at costs of appellant and the cause remanded for execution.

DOYLE, PJ, MIDDLETON, J, concurring.


author: By McBRIDE, J:

text:
    HOOVER, Plaintiff, v. BLACKMORE, Defendant.
    Municipal Court, (Civil Division), Dayton Ohio.
    No. 87235.
    Decided April 12, 1949.
    Southard & Rothberg, Dayton, for plaintiff.
    Canny & Holzfaster, Dayton, for defendant.
   OPINION

By McBRIDE, J:

This action is a civil suit involving a motor vehicle accident which took place March 22, 1947 at the intersection of the Taylorsburg-Englewood Road with the Wenger Road in Montgomery County, Ohio. The plaintiff, Nevin G. Hoover, was operating his vehicle in a northerly direction at a time when the defendant, Otha Blackmore, was approaching the same intersection in a westerly direction on the Wenger Road. Visibility was good that day, however, the view of the drivers of each other was obstructed. The plaintiff alleged in his petition that there was a stop sign located on the corner, controlling traffic approaching on Wenger Road and that the defendant failed to stop before entering the intersection. The evidence clearly establishes that this stop sign had been erected on a post which was subsequently knocked over to an angle which made it impossible for the sign to be seen by anyone approaching the intersection.

Both vehicles entered the intersection at substantially the same instant, the plaintiff travelling at about 35 miles per hour and the defendant, on the right, at about 25 miles per hour. Since neither appear to have been guilty of any lack or ordinary care, the only question is whether or not the defendant had the right of way at this intersection. This must be determined by the motor vehicle statute enacted by the General Code of Ohio.

Sec. 6307-40 GC provides:

“Excepting where otherwise provided the operator of a vehicle * * * shall yield the right-of-way at an intersection to a vehicle * * * approaching from the right.”

Under this section, the defendant, whose vehicle approached from the right, had the right-of-way, unless he was required to stop before entering the intersection as a result of a stop sign erected by the county engineer.

Sec. 6307-7 (formerly §6310-32 GC) provides:

“(a) The provisions of this act shall not be deemed to prevent local authorities with respect to streets and highways under their jurisdiction and within the reasonable exercise of the police power from—
1. Regulating the stopping * * * of vehicles * * *
* * * * * * * * *
6. Designating any highway as a through highway and requiring that all vehicles * * * stop before entering or crossing the same or designating any intersection as a stop intersection and requiring all vehicles * * * to stop at one or more entrances to such intersection;
(b) No ordinances or regulations enacted under subdivisions 4, 5, 6, 7 and 9 of this section shall be effective until signs giving notice of such local traffic regulations are posted upon or at the entrances to the highway or part thereof affected as may be most appropriate.”

Under this section, three conditions exist before local traffic signs are legally effective:

(1) The ordinance or regulation of the “local authorities” must be regularly adopted by the legislative body of the community. Albrecht Grocery Company v. Overfield, 32 Oh Ap 512 (1929).

(2) The regulation must be within the reasonable exercise of the police power of such legislative body (§6307-2 GC), and

(3) Appropriate signs giving notice of such regulations must be posted at the entrances to the part of parts of the highway affected. Bartlett v. McDonald, 59 Oh Ap 85.

In the Albrecht case, the council of the city of Akron had not, at the time of the accident, established Cedar Street as a main thoroughfare; at least, no claim was so made, and no ordinance was offered by the plaintiff in error to establish that fact. (P 517) In that case, the Court said:

“The lawmaking power is vested in legislative bodies and in a few appointive boards, but not yet in the police departments of her many cities. * * * The council of the city of Akron not having passed the ordinance so authorized to be passed, it is quite immaterial whether the police department erected the signs claimed by the plaintiff in error to have been erected, * * *. Signs so erected do not have any legal affect whatever, and no one is required to pay any attention to them.” Albrecht v. Overfield, 32 Oh Ap (518) 512. (1929). (The sweeping effect of this statement was modified in 1935 in Cook v. Hunter, which is discussed later in this decision.)

A somewhat similar decision was rendered by Judge Crawford on January 17, 1948, in Case No. 95317 in the Common Pleas Court of Montgomery County, Ohio, involving the intersection at Broadway and Oxford Avenue in Dayton, Ohio.

The issue in the instant case is therefore reduced to the question as to whether or not the Commissioners of Montgomery County, Ohio, adopted any resolution regarding the intersection in question.

A deputy from the County Engineers Office testified that he was in charge of a book, kept by him of all traffic signs erected in Montgomery County by the Engineer’s Office. He testified that two stop signs were erected on Wenger Road at this intersection on the 24th of September, 1937; that these two signs and several hundred additional signs were erected for the safety and convenience of the public, without any resolution from the county commissioners. He stated that over approximately the past 15 years, five or six signs were authorized by the county authorities, but that the two in question were not included in such resolutions. No ordinance or resolution involving this particular intersection was offered at the trial.

The testimony reveals that about five years ago, the county engineer, apparently at the request of the commissioners, made a survey of all existing signs and needed traffic controls in the county. Since that time, a record has been maintained by the engineer of all signs that have been erected, however, few such controls have ever been approved by the commission.

Sec. 6307-2 GC defines “local authority” as every county, municipal and other local board or body having authority to adopt local police regulations under the constitution and laws of this state. The Attorney General has given an opinion that the term “local authorities” includes boards of county commissioners. The county engineer has no power to establish police regulations. The right to do so on behalf of a county resides only with the county commissioners.

We find from the evidence that no ordinance or regulation controlling this intersection was ever adopted and that the stop sign at the intersection involved in this case was of no legal significance. The defendant did not violate any lawful police regulation when he failed to stop.

Effect of Unauthorized Stop Sign

Since the particular stop sign at the intersection was defaced and so bent to the ground that it was not visible, it is unnecessary to decide the effect of a visible, appropriate sign in this case, however, in the interest of public safety it is necessary to observe that the strong words used in the Albrecht case were modified in 1935 by the same Court of Appeals. Such “courtesy” signs cannot be flagrantly disregarded. In Cook v. Hunter, 52 Oh Ap 354, 6 O. O. 382 (1935), the Court of Appeals of Summit County said:

“We are now constrained to assert that this quoted language—
(Signs so erected do not have any legal effect whatever, and no one is required to pay any attention to them.)
—was unfortunate. It has always been permissible to show all the conditions, facts and circumstances surrounding the location of a collision of this character, in determining whether the respective parties, in view of these conditions, facts and circumstances, acted as ordinarily prudent persons would act under like conditions, facts and circumstances, and were therefore guilty of negligence or contributory negligence, directly and proximately producing the collision and injury, although a criminal conviction could not be based upon a failure to observe a stop sign or traffic light not erected and maintained by authority of law. The warning effect of the traffic signal erected at the intersection of the roads where the collision oecufred which gives rise to the instant action, was in no way lessened or increased by the obtaining or failing to obtain the consent and approval of the highway director to erect and maintain the same. We expressly disapprove that portion of the language used by this court on page 518 in the opinion in the case of Fred W. Albrecht Grocery Co. v. Overfield, supra, to-wit: “And no one is required to pay any attention to them.”

Where the presumption that an appropriate, discernible stop sign was authorized has been rebutted by the evidence, such sign is nevertheless a definite warning of danger, especially when it is located at an intersection or at a place where a dangerous condition exists. Consequently, in a civil action, the presence of an unauthorized sign is material on the question of negligence or contributory negligence but it is not material on the question of a violation of law or negligence “per se”. In other words, one who disregards such a sign cannot be prosecuted criminally, nor can he be said to be negligent because he violated a law, however, in a civil case, he may be found to have failed to exercise ordinary care in failing to heed the warning of the condition or danger indicated by the sign. This is particularly true at intersections where the presence of a stop sign implies that others may approach from a different direction without being similarly warned of the danger.

Unauthorized “courtesy” traffic controls, if clearly visible, require operators of vehicles to take such factor into consideration in exercising ordinary care under the circumstances. Mere failure to stop is not, and cannot be, negligence “per se”, however, if the sign is visible from an approaching vehicle, that fact may be considered by the judge or jury just as in any other case involving the exercise of ordinary care. How far the law may go under such circumstances — without actually enforcing an unlawful traffic signal — is a question which can only be resolved by the facts and circumstances in each case.

It is argued that the court should interpret the State statute as extending the police power of the county to include the discretionary acts of the county engineer because his acts “best serve the interest of the public.” Extending this argument, we would be required to recognize the act of any county officer or employee who individually acted in the interest of the public. It can readily be appreciated that such a position would destroy organized government. In the county, the commission is the only body having authority to adopt police regulations.

* * * * * *

'Since the sign involved in this case was not visible and could not have advised the defendant of any danger, we cannot consider its presence in determining the question of the exercise of ordinary care by the defendant.

Consequently, we must find that the defendant was not required to stop before entering the intersection and further that since the defendant was approaching the intersection on the right, he was entitled to the right-of-way, that is, to proceed uninterruptedly in a lawful manner into the intersection.

The presence of a lawful stop sign would have completely reversed the right-of-way at this intersection and accordingly would have required a decision in favor of, rather than against this plaintiff, however, in view of the fact that no regulation authorizing the sign was ever adopted, we are compelled to find that not only was the defendant not required to stop but that in addition, he had the right, under §6307-40 CG, to enter uninterruptedly in preference to the plaintiff.

The petition of the plaintiff for $375.00 damages is accordingly dismissed at his costs.


author: By GRIFFIN, J.

text:
    SCHOFIELD, Trustee, v. CLEVELAND TRUST COMPANY.
    Common Pleas Court, Cuyahoga County.
    No. 437880.
    Decided June 21, 1948.
    Garfield, Baldwin, Jamison, Hope & Ulrich, Robert H. Jamison & Robert F. Lee, of counsel, Cleveland, for plaintiff.
    Jones, Day, Cockley & Reavis, Frank C. Heath, of counsel, Cleveland, Douglas, Stark, Jett & Biechele, R. S. Douglas, of counsel, for defendant.
   OPINION

By GRIFFIN, J.

Prior to 1943, plaintiff, a successor trustee, filed suit against the defendant bank to recover moneys alleged to have been diverted from the trust estate by the original trustee, and paid in part to the bank and in part to third persons, on private, personal obligations, and for personal purposes of the trustee. It was further alleged that the defendant bank participated in all such diversions with either knowledge or notice thereof. Recovery was ultimately allowed against the defendant bank for diversions in which the funds were actually paid to the defendant bank. The action was at law and for money only. (24 O. O. 345.)

On March 31, 1943, the Common Pleas Court of this county rendered judgment on certain claims in the above action against defendant Cleveland Trust Company for $16,450 which amount included interest to March. 31, 1943, and with respect to other claims of the plaintiff rendered judgment against the plaintiff.

On April 2, 1943, defendant deposited with the clerk of this court the sum of $16,583.11. Neither the defendant nor the clerk of court at that time gave plaintiff any notice of the making of said deposit, and the fact of the deposit was not actually brought to the knowledge of either plaintiff or his counsel until about August 26, 1946.

After said judgment was rendered by the Common Pleas Court the plaintiff appealed to the Court of Appeals seeking recovery from defendant with respect to the claims upon which the Common Pleas Court had ruled against him. The Court of Appeals affirmed the judgment rendered by the trial court.

Pursuant to plaintiff’s further appeal the Supreme Court of Ohio on February 25, 1948 (149 Oh St, 133, 36 O. O. 477), entered an order partly reversing and partly affirming the judgment of the Court of Appeals.

The Supreme Court awarded the plaintiff additional amounts of $11,922.69 and $19,683.42, both with interest.

Thereafter defendant paid to plaintiff, and plaintiff accepted $76,308.96; this, by agreement of the parties, being the correct amount, including interest, due for the additional amount adjudged to plaintiff by the Supreme Court. Defendant has never paid direct to plaintiff any principal or interest upon the original amount of judgment in the Common Pleas Court nor has it ever made any tender thereof apart from the deposit made with the Clerk of Courts. Further, there has been no order of court expressly directing or authorizing payment to the Clerk of Courts.

This set of facts gives rise to the following questions:

(1) Where a judgment debtor deposits the amount of the judgment with the Clerk of Courts without notice to or agreement with the judgment creditor does such deposit constitute payment to the judgment creditor and operate to satisfy the judgment?

(2) Does such deposit stop the running of interest on the judgment?

The court has had the benefit of extensive briefs by both parties and has made considerable independent study of the questions involved.

The duties of the Clerk of Courts are set forth in §§2867 to 2908 GC as well as in a number of other scattered sections in the Code. While the authority, power and duties of the clerk are set forth with considerable particularity and detail the court finds that the General Code provisions do not at any point expressly or specifically direct or authorize the clerk to accept payments of judgments under the circumstances in this case.

Sec. 2899 GC, provides, as follows:

“The clerk of each of the courts shall exercise the powers conferred and perform the duties enjoined upon him by statute and by the common law; and in the performance of his duties he shall be under the direction of his court.”

At common law the Clerk of Court was without general authority to receive payment of judgments.

See 23 O. Jur. 1312; Freeman on Judgments, Vol. 2 Sec. 1115; 34 Cor. Jur. 686, Judgments, Sec. 1058; 31 Amer. Juris. 356, Judgments Sec. 868.

It follows then that the authority of the clerk to accept payment of judgments in the type of case before the court must exist, if it exists at all, by virtue of statutory authority either express or implied. It is true that in a number of specific instances such as in certain condemnation judgments and foreclosure proceedings, the clerk is specifically authorized to receive payments of money.

The court finds, however, that none of these special statutory provisions are applicable to the facts in the present case.

After a careful study of the cases cited, and the statutory provisions governing the clerk’s duties, the court concludes that the authority to accept payment under the circumstances in this case can not be implied from any of the provisions of the General Code. While the statutes of this state contain many provisions defining and regulating with much detail the duties and powers of clerks of courts, this court finds no evidence of any such duty as that or collecting or receiving money due upon judgments under the circumstances of this case. If the clerk has the authority to receive such money it is because he has the legal duty to do so, and that duty would require him to receive money upon any and all judgments rendered in the court. Considering the immense amounts that are adjudged in some of the cases before this court this duty, if it existed, would undoubtedly be one of the most important of all that are imposed by the statutes, and we should expect to find some specific notice taken of its existence in our legislation, and some provisions regulating the discharge of it. The existence of the several exceptions appearing in the Code, as hereinbefore noted, fortifies the rule that there is no general authority in the clerk to accept payment of judgments under the well settled rule that the mention of one thing implies the exclusion of another thing; expressio unius est exclusio alterius.

As stated in Texas & Pacific Railway Co. v. Walker, 93 Texas, 611:

“The fact that express authority is given to receive money in the cases noted and the absence of any notice of what would be a much more extensive and important one argue very strongly- that it was not intended that the latter should exist.”

The fact that express authority is given by statute in the particular instances noted herein and the absence in the legislation of any notice of what would be a much more extensive and important duty argues very strongly that it was not intended that the latter should exist.

"He (Clerk of Courts) has such duties only as are given by statute.” State v. Shaw, 43 Oh St, 324.
“The powers so conferred are to be strictly construed and exercised in accordance with the statute conferring them.” 7 O. Jur. 673, Clerk of Courts.

In 23 O. Jur., 1312—Judgments, Sec. 1287, the rule is stated, as follows:

“Sec. 1287 GC. Payment to Clerk of Court. In the absence of statutory provision, the clerk of courts ordinarily has no authority to receive payment of judgments, and a deposit with him of the amount due, with notice of this fact to the creditor, is not even a tender of payment. He is merely the agent of the debtor under such circumstances.”

2 Freeman on Judgments (5 Ed.) 2324, Sec. 1115, states:

“However, the clerk ordinarily has no authority to receive payment. And a deposit with him of the amount due, with a notice of this fact to the creditor, is not even a tender of payment. He is merely the agent pf the debtor under such circumstances.”

49 C. J. S. 1022, Judgments, Sec. 551, states:

“It is a general rule that the clerk of the court in which a judgment has been rendered has no right to receive money from the judgment debtor in satisfaction of the judgment without special authority, such as authority conferred expressly or impliedly by statute.”

“The payment of a judgment in order to be effective, must be made to a proper party.” Amer. Juris. Vol. 3, p. 356 Sec. 867.

Payment to the clerk under the circumstances of this case was without authority of law, and of no more effect than a deposit of the amount with any’third person. It could not operate as a payment or satisfaction of the judgment, at least not until recognized and accepted as such payment by the plaintiff. The clerk could not receive the money in his official capacity unless authorized to do so by statute or by order of the court.

Answering the questions stated at the outset:

(1) The deposit by the defendant with the clerk of courts in this case, to wit, $16,583.11 on April 2, 1943, did not constitute payment to the plaintiff, the judgment creditor, and does not operate to satisfy the judgment.

(2) Such deposit does not stop the running of interests on the judgment with the result that the interest continues to run until the judgment is duly paid.

Wherefore, the court orders a final judgment herein in the amount of $92,748.96, together with costs in all courts; the court orders that partial satisfaction of said judgment be entered in the amount of $76,308.96.

The court further finds and adjudges that there is now due and owing to the plaintiff from defendant the sum of $16,450 with interest at six per cent per annum thereon from March 31, 1943, and costs of suit.


author: By HORNBECK, J.

text:
    LEE, Plaintiff-Appellant, v. H. & S. BUILDING CO., Defendant-Appellee.
    Ohio Appeals, Second District, Montgomery County.
    No. 1943.
    Decided December 4, 1948.
    William L. Struck, Hollencamp & Hollencamp, Dayton, for plaintiff - appellant.
    Pickrel, Schaeffer & Ebeling, Dayton, Bradley Schaeffer of counsel, for defendant-appellee.
   OPINION

By HORNBECK, J.

The appeal on questions of law and fact is from a judgment of the Common Pleas Court dismissing plaintiff’s petition. The suit is to enjoin the defendant from erecting dwelling houses on certain lots owned by it in McKnight’s Eastwood Plat, City of Dayton, in claimed violation of an uniform building restriction carried in the deed for said lots.

There is no issue as to the validity or binding effect of the restriction. It is “That the said premises shall be used only for dwelling purposes and only a dwelling house and private garage may be erected thereon; said dwelling must cost at least $4,500.00.” It is the claim of plaintiff that the defendant “has begun construction of dwelling houses of which the cost of each is less than $4,500.00.” This is denied by the defendant and is the sole, determinative issue in the cause.

The dwellings under consideration are of the prefabricated type of structure some of the materials therein having been partially assembled before delivery to the site of their erection. Other essentials to the structure, such as excavating, cement work, carpentry, plumbing, plumbing fixtures, electrical wiring and fixtures, heating, painting, etc., had to be completed on the site of the building and this work was carried on either by employees of the defendant or by sub-contractors employed by it.

The testimony of the plaintiff is that of experienced builders from the City of Dayton, who admit they are not conversant, except in a general way, with prefabricated building but state that a dwelling of the dimensions of that under construction by the defendant and differing only in that part which may be said to be prefabricated, can be erected, in what they term the conventional manner, at a cost varying from a little below to a little above $4,000.00. In the figure supporting their estimate it appears that the defendant has paid more on many of the items making up the cost of the completed structure than, in their judgment,.is the reasonable cost therefor. Most of the difference represented by their estimates, as compared to the expenditure of defendant, is in the cost of the frame work or that part which is purchased as a prefabricated unit from the company which provided it. In no instance is any profit or allowance for general supervision of construction included in the foregoing estimates nor would any of plaintiff’s witnesses say that he would build the house under consideration for as little as $4,500.00. This last development is significant for in the last analysis, the question is what is the reasonable cost of placing the completed houses in question on the lots of defendants.

It may be said that, if a moderate allowance be made for general supervision of construction, which we are satisfied is a proper item of cost, the total cost of the completed structure upon plaintiff’s own testimony would be approximately $4,500.00. It is manifest that in determining whether or not the defendant has substantially complied with the restriction we may not subject his expenditures to the exacting test of experts. Defendant could not, without adding materially to the final costs of its dwellings, have had the benefit of the expert building cost analyses which is forthcoming on this record.

The defendant, however, did not elect to rely upon the close question whether plaintiff had, on his own evidence, failed to make proof of his case but fully and completely developed its expenditures making up the total cost of the houses under consideration.

On behalf of the defendant it appears that it has spent on an average for each of three completed houses, identical with those in process of erection in the plat in question, the sum of $6,009.41. This total expenditure is not disputed nor is there anything in the record that casts any doubt upon it or upon the good faith of the defendant in making it. But, it is urged by the plaintiff that the defendant has not received value for the money it has spent and that the completed house will not be forth $4,500.00, and that value is tantamount to “cost’’ as employed in the language of the restriction.

Mr. Carl F. Booster, Director of Housing Research, Purdue University, widely experienced in prefabricated construction both experimentally and as a builder, testified that he had supervised the construction of twenty-three houses, identical with those to be erected by the defendant, within a period of ninety days prior to the date of trial, at a cost of $5,700.00, each, independent of profit or charge for supervision. Harold Conrey, a building contractor- from Cincinnati fixes the cost there of construction of the house in question at $6,113.00, in a market where the cost is a little below that in the Dayton area. Mr. Conrey was a District Director of the Federal Housing Administration, Cincinnati, for the years 1934 to 1939 and says that it is absolutely impossible to build the house under consideration for $4,000.00. Chester Edwards, a contractor builder of Hamilton, Ohio, states that the cost of building the house in Hamilton, with no profit to the builder, is $5,800.00 to $5,900.00; that the material alone will cost $4,500.00. The sub-contractor plumber and the carpenter contractor on the houses which defendant had completed testified to the cost to the defendant of the work which they had done confirmatory of the statement of Mr. Holden. President of the defendant company of the sums it had expended for their services. Sam Wonderly, the contractor for defendant, estimates the cost of the houses under consideration will be $6,180.90, each.

It is evident that the plaintiff has been unable- to prove that the defendant has violated the terms of the restriction.

We have discussed the testimony of defendant at considerable length because it establishes, in our judgment, that it will place on its lots houses which when completed, will cost far in excess of $4,500.00 each; that such expenditure will be made in good faith and that the reasonable value of' each dwelling, so erected, will be equal to or greater than the minimum requirement of the restriction.

In so holding, we do not say that the- defendant will receive full value for the money it will expend. In probability it will not. But what can we buy today that upon technical analysis will return to us full value for our expenditure? Neither is it necessary for us to express any opinion as to the comparative merits of prefabricated and conventional construction nor as to the reasonableness of the cost of the prefabricated units used in the houses here considered. Certain it is, that the economy is not carried in to the selling price of these units that should be effected by the use of lighter framing material, the purchase in great quantities, the use of uniform lengths of ply wood and lumber and the ability to manufacture and deliver in considerable numbers. Reduction in cost will come, if ever, when production and demand are more nearly equal.

The restriction here is confined solely to the cost of the building under the conditions now obtaining and in the market as we find it. The restriction does not affect the type of construction, the material to be used, the style of architecture nor the dimensions of the structure. Had the original platter desired to further control the type of dwelling that should be erected in the sub-division, he could have done so by a different and more rigid form of restriction. Whether or not the original owner approves of prefabricated construction as against the more conventional type is of no consequence as the language of the restriction will not permit of differentiation.

It is probable that the plaintiff and other property owners in the addition where the buildings of defendants are now being erected are and, it may be, have good reason to be offended by the appearance of these dwellings in comparison with their own homes. The only test that can be employed as to the right of the defendants to erect the structures is whether or not, in the acute housing situation and in the present market, each costs not less than $4,500.00.

Plaintiff cites Snyder v. Lakewood Land and Improvement Co., 20 O. C. C. N. S. 295; affirmed 90 Oh St 382. The restriction there prohibited the erection of a house on the premises at a cost of less than $3,500.00. Defendant moved a barn onto the premises, made some repairs and moved into it. It was admitted that the value of the building after the alterations was less than $3,500.00. The Court supported the enforcement of the restriction. It is urged that, notwithstanding the fact that the defendant here may have expended more than $4,500.00 in the cost of its dwelling, the value of the structure is less than $4,500.00. If a builder spends $4,500.00 in the cost of a dwelling and such sum is a reasonable expenditure under all the circumstances, it is to be presumed that he has a completed structure of the value of the amount that he has put into it. Cost and value, in this situation, are synonymous. In the cited case, the Court had under consideration a barn which had long been constructed. Manifestly, its value then was the only practicable test of its cost in the light of the language of the applicable restriction. In the situation thus developed it was proper to speak of the value of the barn after improvements as its cost. In any event, there was no issue, either as to the cost or the value.

Another case cited is Emory v. Sweat, 9 Tenn. App. 167, holding that the reasonable cost is the basis of determination whether or not compliance has been observed of a restriction fixing a minimum cost in the erection of a dwelling. We are in full accord with this decision.

Russell Realty Co. v. Hall, 233 S. W. 996, is authority to the effect that cost, as stated in a building restriction, is the amount actually expended at the time the house is constructed. This obviously .is the intent of such restrictions and becomes especially material in times like these when costs are inordinately high and the purchasing power of the dollar is relatively low, notably in the housing field.

This is not a close case on the record and we have developed it at length in part, because, strange as it seems, there are but few cases on the point here involved, viz; the application of minimum cost requirements in restriction covenants in deeds.

Upon careful consideration of the record, we do not find that the defendant has violated the terms of the restriction in its deed in that it is erecting a dwelling house on any of its lots which will not cost, at least, $4,500.00.

Judgment for the defendant. Petition dismissed.

WISEMAN, PJ, and MILLER, J, concur.