text:
    SCHAENGOLD v DICK, et
    Ohio Appeals, 1st Dist, Hamilton Co
    No 3527.
    Decided Dec. 30, 1929
    Strother, Greenberg & Schubert and Miss Vera A. Woeste for Schaengold.
    Julius R. Samuels, Cincinnati, for Dick, et.
   HAMILTON, J.

The record discloses that on August 1, 1928, the defendants tendered to the plaintiff, in the office of the plaintiff’s counsel, a deed to the property, together with the calculated balance due on the mortgage to the Savings & Loan Association, and demanded payment of the balance of the purchase price. Plaintiff refused to proceed, and demanded the $1000.00 deposit, for the reason that the title to the property was not clear. There is some dispute in the evidence as to just what was said, but the trial court could well conclude from the evidence that such tender was made.

It appears that there were some actions in the court of common pleas in the foreclosure of mechanics’ liens, and for personal judgments, but the record discloses that the mechanics’ liens had been cancelled of record more than a year prior to the making of the contract in question. It also discloses that these judgments had been paid, but that no formal entry of satisfaction had been placed on the record. Ten days later, the defendants placed of record satisfaction of the judgments which had long since been paid. Three days after the entering of the satisfaction of the judgments, defendants again tendered a deed, with the caculated balance due the Savings and Loan Association, but performance was refused by the plaintiff.

Disposing of the judgments, it is sufficient to say that the judgments not being enforceable against the property, were but clouds on the title at the time of the tender of August 1, 1928, and could not be considered as’ an incumbrance thereon, and would, therefore, not affect the merchantability of the title. It was therefore not an incumbrance which would justify the plaintiff in refusing performance on the question of the title as affected by these judgments.

Neither would the mortgage excuse performance when it was presented that sufficient'of the purchase money was to be alloted to the discharge of the mortgage held by the Savings and Loan Association. The evidence is sufficient to show that this mortgage was to be taken care of in the closing of the transaction.

It is argued by counsel for plaintiff in error that time is of the essence of this contract, .and that no clear, free, and unincumbered title being presented within the 60 days provided in the contract, that any tender subsequent thereto was of no avail.

If the tender of August 1st could be questioned this would not relieve .the plaintiff from performance, since under the law time could only be made of the essence of the contract by the express agreement of the parties, or by circumstance, or by length of time which would make it inequitable to compel specific performance.

There is no provision in this contract expressly making time of the essence thereof ,nor do we find in the record any circumstances which would change the situation. In courts of law time is always considered as of the essence of all contracts, but in equity this is not so, and under the equitable rule, time is not of the essence of this contract) Therefore, the tender of August 13th would be sufficient, if the tender of August 1st could be questioned.

It has been decided and is the law that ,a mortgage, to be taken care of out of the purchase money, is not an obstacle to specific performance of a contract. It has also been held that if the parties are able to present a good title at the time of the decree, specific performance will be decreed. It has been held that where there are liens to be, discharged, same may be provided for in'the decree. The extent to which courts will be .authorized to give the relief of specific performance is shown in the case of Richards v. Doyle, 36 Oh St 37. The case here warranting a decree of specifi.c performance is much stronger than in the case of Richards v. Doyle. We, therefore, hold that the defendants, on their cross-petition, are entitled to a decree of specific performance under the facts in the case, and it was properly granted. However, the decree provides:

“IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the plaintiff shall within fifteen days from date hereof pay to the defendants the balance of the purchase price of said property due under the contract entered into between plaintiff and defendants to-wit: Nineteen Thousand Dollars ($19,000.00) together with interest at the rate of six per cent per annum from the 2nd day of August 1928 until paid, less a deduction for the amount due The Eagle Savings & Loan Association on the mortgage held by it on the property aforesaid, which latter amount due The Eagle Savings & Loan Association shall be paid to it by said plaintiff, in extinguishment of said mortgage.”

It will be noted in this paragraph of the decree the court gives a decree for interest on the balance of the purchase money from the date of the tender, from the 2nd day of August, 1928 until paid. This part of the decree would give to the defendants interest on the unpaid balance and ,at the same time possession of the property for the period, and any income derived therefrom. We know of no rule of law or any decisions which go this far. It would seem inequitable for the defendants to have the property, and at the same time receive interest on the' full value thereof, as interest on money.

The only relief asked by the defendants in the cross-petition, is specific performance of the contract and that is all they are entitled to. In other words, upon the delivery of the deed, they are entitled to have the balance of the purchase price, less the amount required to discharge the mortgage held by the Savings and Loan Association.

The decree may therefore, be modified, eliminating the auestion of interest, and, as so modified, will be affirmed.

Cushing, PJ, and Ross, J, concur.


source: Caselaw Access Project

author: SULLIVAN, J.

license: Public Domain

text:
    MOXON, et v STATE ex BINYON
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10747.
    Decided June 9, 1930
    Charles A, Colvin, Cleveland, for Moxon, et.
    Edward A. Binyon, Cleveland, for State ex.
   SULLIVAN, J.

In State ex rel vs Halliday, 61 Oh St 171, it is laid down that what distinguishes a public office is tflat the incumbent is clothed with an independent capacity equal to an act of sovereignty derived from the state and exercised under 'the authority of law in the interest of the public.

It has been held in 29 Oh St 261, Smith vs Lynch, that membership in a Board of Health is an office, and in 45 Oh St 198, State ex rel vs Anderson, that the presidency of the city council is a public office and we find similar decisions in Commissioners vs Evans, 74 Pa. 124, and State vs Valle, 41 Mo. 29.

It may be that if the members of the commission in question were not already part of the constituency of the commission that the trusteeship would be a public office, but in that event there would be an independent capacity which might exert acts of sovereignty of the state under the laws. We must consider the question, however, from the standpoint as to whether the appointment and' qualification under the trusteeship is a mere adjunct to the office of membership in the commission.

In other words, is the appointment and qualification to the trusteeship one of the instrumentalities by which the commission exercises its power in relation to the pension funds of the firemen and the police? It m,ay be that the members of the trusteeship selected from the body politic under 4600 GC and 4616 GC, hold a public office by reason of the fact that they have an independent official identity but this situation distinguishes itself from the trusteeship of the two members of the commission because as members of the commission they are clothed with all the paramount powers relating to pensions that control and direct the funds and it cannot be said that the commission under proper procedure cannot, in an ancillary way,- in order to accomplish its purpose, choose in conformity to law an instrumentality to carry out and eventuate the legislative purpose.

Under 4605 and 4621 GC it is the Council, and not the Board of Trustees that in each instance levies the tax not to exceed three-tenths of a mill in order to provide -funds for the payment of the pensions for the policemen and firemen. This shows that the authority of the commission over the creation of the fund and the purpose of the fund is supreme and the creation of the trusteeships is the vehicle by which the legislative body fulfills the purpose for which the funds are created.

That legislative bodies have the authority to create independent bodies to act as instrumentalities to carry out' their purpose?, there can be no question and the trend of opinion has gone in this direction so far that even Congress creates many Commissions which,' in a technical if not in a practical sense, exercise legislative authority and a special instance is where there is ample authority for the President, even though an ■ executive, to lower and increase tariff rate under the authority of the Tariff Act, known as the flexible provisions thereof. Thus, it is our judgment that membership in the Board as far as the two plaintiffs in error who have membership in the trusteeship, are concerned is not the holding of an office under the law and therefore we see no conflict in the provisiorffe of the General Code noted and the provisions of the Charter' which prohibits the members of the commission from holding any other office or employment excepting that of notary public or membership in the State Militia. This view is accentuated by the fact that it was not the intention of the legislative body of East Cleveland to include membership on the part of the trustees as violative of that provision of the Charter which excludes office holding in addition to membership on the commission, excepting in the two instances named, and a reading of Sec. 31 of the Charter, by its language maintains this view. We quote this Section as follows:

“Relief of Policemen and Firemen. Sec. 31. The Commission may provide by ordinance for the relief, out of the police or fire pensions, of members of police, fire and sanitary forces temporarily or permanently disabled in the discharge of duty. Nothing in this section shall impair, restrict or repeal any provision of general law authorizing the levying of taxes to provide for police, firemen and sanitary police pension funds and to create and perpetuate boards of trustees for the administration of such funds.”

This section, of course, is part of the charter and refers to police and fire pensions and in order to eradicate any intention on the part of the legislative body to create a conflict in the laws there is inserted the negative provision that there would be no impairment or repeal of any provision of the general law relating to the pension funds or to the creation and perpetuation of the Board of Trustees for the .administration of the fund.

Hence it is our judgment that the plaintiffs in error are not holding an additional office by qualifying for membership on the Board of Trustees for the disbursement of the pension funds. The trustees are merely the instruments to carry into effect the purposes for which the commission levied taxes to create the fund to be disbursed in the manner provided by 4628 GC. and the other provisions relating to the firemen’s pension fund.

From the views expressed it is immaterial whether there is a conflict in the provisions because that question would only become vital were plaintiffs in error by qualifying under the appointment to the trusteeship, to become the incumbents of an additional office instead of assuming duties which were consistent with and derived from their powers and duties under the law relating to the funds in question as members of the commission created by popular vote.

Thus holding the judgment of the Common Pleas Court is hereby affirmed.

Vickery, PJ, concurs. (Levine, J, not participating.


author: LEVINE, J.

text:
    GARMAN v WM. TAYLOR SON & CO et
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10200.
    Decided Feb. 10, 1930
    Fuerst & Brown for Carman.
    Niman & Buss, Cleveland, for Taylor Co, et.
   LEVINE, J.

It is claimed that the court erred in the admission of evidence prejudicial to the plaintiff. The testimony objected to was that of Mr. Frank Merrick. He was permitted to testify as to conversation with officers and emnloyees of defendant company and with defendant, Simmons, and as to services rendered by himself in connection with the prosecution of the criminal charge and the preparation therefor. Mr. Merrick was attorney for The Retail Merchants Board and whatever he did, according to his own statement, he did in the line of his duty for said Board of which The Wm. Taylor Son & Co. was a member.

Mr. Merrick w,as not in the city when-the affidavit sworn to by Lillian Simmons was filed, nor during the time when the arrest of the plaintiff took place. He returned to the city about a week later, and in the line of his duty as attorney for the Retail Merchants Board, sought to acquaint himself with what took place.

The theory upon which the trial court admitted the testimony is that the same bears on the question of malice. In the general charge of the court to the jury (see record p. 439).the court referred to the evidence of Frank Merrick and stated that this evidence was received for such light it might throw on, the question as to whether or not -the defendants were actuated by malice.

It is difficult to conceive how such statement covers the law applicable to the case. It is admitted that-the arrest of plaintiff was accomplished long before Mr. Merrick returned to the city- and -that the same was done without his counsel or advice. It is contended by. defendant in error that the evidence of Mr. Merrick covering his investigation of the case upon his return to the city and the advice which he gave, would be competent by w,ay of showing the absence of malice in further proceeding with the prosecution of the case. It is, in our opinion, very doubtful, in view of the fact that the arrest of the plaintiff was already accomplished, and it having become a case prosecuted in the name of the State of Ohio against the plaintiff, whether the advice of the attorney for the Retail Merchants Board, given after an investigation of the case by him, as to the advisability of further proceeding with the case, can be received in evidence for the reason that the same ceased to be a mere difference between private individuals. It is prosecuted under the name and hacked by the dignity of the State of Ohio and the defendants lost all control over the case after they set the machinery in motion and thereby accomplished the arrest of plaintiff.

Assuming for the sake of argument that such evidence as was given by Mr. Merrick was competent, by way of showing an absence of malice in further proceeding with the prosecution, yet the charge of the court is general in its terms and permits the jury to consider the same in connection with all the steps which were taken in the case, including the initial steps, namely the swearing to the affidavit and securing the arrest of the plaintiff. Surely no possible justification for these initial steps can be founded upon advice of counsel secured a considerable period after the arrest was accomplished. This, in our opinion constitutes prejudicial error substantially affecting the rights of plaintiff in error.

It is further claimed that the court erred in refusing to submit written requests to charge before argument, as follows:

“1. I charge you as a matter of law that to warrant a recovery by the plaintiff, it must not only appear by a preponderance of the evidence that the prosecution was without probable cause, but it must also appear by the same degree of proof that it was malicious. In common .acceptance, malice means ill will and hatred but in a legel sense the effect of a wrongful act intentionally done and without just cause. Express malice is shown by proof of ill will and hatred. Implied malice may be inferred from the proof of wrongful acts intentionally done without just cause.” “2. The jury is further instructed that if you find by a preponderance of the evidence, that the prosecution was without probable cause and malicious, and that malice as shown by the proof, either express or implied, is also proven by a preponderance of the evidence, then the jury may award exemplary.or punitive . damages in addition to damages merely compensatory and that if the jury awards exemplary punitive damages it may include a reasonable coungeh-fee in its estimate of compensatory ‘damages.”

Request No. 1-, despite some' pertinent criticism applied to the language used, substantially stated the law applicable to this case and should have been given to the jury.

As to Request No.’2, which deals with the awarding of punitive damages, it is contended by defendants in -error that the court properly refused to give said instruction for the reason that it stated that if the jury found that the prosecution was without probable cause and malicious, and that malice as shown by the proof, either express or implied, is also proven by a preponderance of the evidence, then the jury may award exemplary or punitive damages in addition to damages merely compensatory, etc.

It is urged that only in the event of express malice can punitive damages be awarded and that none can be .awarded where there be merely implied malice. It must be borne in mind that malice is a state of mind and as such is incapable of direct proof except such as may be inferred from the circumstances. No photographic impression can be .adduced of a state of 'mind, but the same must of necessity be gathered from all the circumstances presented in the case. The distinction, therefore, sought to be made of an express and implied malice does not seem to us tenable.

The definition of “malice” is given in 16 R. C. L. 29 as follows:

“And malice is not in itself the same thing as want of probable cause. As to what constitutes malice as the sense in which the word is used in- actions for malicious prosecution it is,not necessary to prove any actual spite, ill will or grudge, for one having no ill will against another may nothwithstanding be guilty of malicious prosecution of him. It may be stated as a general rule that a wrong act, done intentionally without legal justification, constitutes such malice in instituting a civil action as will support an action for malicious prosecution.”

In the case of Nappi et al vs Wilson, 22 Oh Ap 520, in the opinion of the court we find ,a clear statement of the law and partly applicable to this case:

“Where A purposely deprived B of his liberty, and had him imprisoned without legal proceedings, and in doing so acted wantonly without probable cause, and in reckless diregard of the rights of B, and B was released because of A’s failure to institute legal proceedings, the jury may award exemplary damages in an action for false imprisonment brought by B against A, although A was not actuated by malice, in the sense of ill will or evil design.”

“Actual malice in the sense of ill will or evil design, is not the only predicate for the allowance of exemplary damages, where A is purposely depriving B of his liberty and having him imprisoned without legal proceedings, acts wontonly and without probable cause and in reckless disregard of the rights of B, and B is released because of A’s failure to institute legal proceedings, the jury may award exemplary damages, although A had no “actual” malice. Horan vs Whitney, 20 C. C. (N. S.) 489, 24 C. D. 523; Royal Furniture Co. vs Weist, 23 C. C. (N. S.) 423; 34 C. D. 327; Kelley vs Great Northern Ry. 42 Minn. 492, 171 N. W. 276; Stevens vs O’Neill, 51 App. Div. 364, 64 N. Y. S. 663.”

“Malice as Element. As a general rule to warrant the allowance of exemplary damages there must be some evidence of malice, express or implied, or oppression but positive proof of malice or oppression is not required. It is sufficient if from the transaction or the facts shown in connection therewith either of these may be fairly implied. * * *, and generally malice which will authorize a recovery of exemplary damages may be actual or presumed.”

Instruction No. 2 was a proper request which in our opinion should have been given to the jury.

Upon the above ground stated, the judgment of the common pleas court is ordered reversed and the cause remanded for a new trial according to law.

Vickery, PJ, and Sullivan, J, concur.


author: RICHARDS, J.

text:
    BENDER v CLEVELAND TRUST CO
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10374.
    Decided March 24, 1930
    Winfield Worline and Paul Howland, both of Cleveland, for Bender.
    Dustin, McKeehan, Merrick, Arter & Stewart, Cleveland, for Trust Co.
    Judges WILLIAMS and RICHARDS (6th Dist) sitting
   RICHARDS, J.

What, under these facts, are the rights of the parties? It is very significant that neither the endorsement on the passbook nor the card contains language giving the survivor any right to the deposit, the language being such as to give to each party the right of withdrawal only. The great majority of the reported cases appear to be those where the survivor was given the right to the entire fund and the law applicable to that kind of a case is announced in The Cleveland Trust Co. vs Scobie, Admr., 114 Oh St 241. The syllabus in that case indicates the rule of law where the endorsement contains a survivorship clause and the evidence shows that the depositor intended to transfer to the person to whom he made the account jointly payable a present joint interest equal ot his own, the holding being in such case that the authority to withdraw being unrevoked at death, the survivor is entitled to the balance of the account. An interesting discussion on the questions here involved may be found in a decision of the Court of Appeals of this county in the case of Schmitt vs. Schmitt, 28 O. L. R., 511 (8 Abs 71.) Unquestionably the rights of the parties depend upon whether the intention of David Bender was to create a joint interest and ownership in his wife in the fund represented by the passbook or to make her his agent or representative for convenience in drawing the money and that is to be determined by what was said and done at the time the change was made in the identification card .and the passbook. Spillman, Exr. vs. Wiegand, 54 N. J. Equity, 198. Certainly the mere fact alone of having the passbook changed so as to permit Jospehine Bender to withdraw money from the bank would not be sufficient to constitute a present gift of the fund.

Schippers, Exrx. vs. Kepkes, 12 L. R. A., N. S., 355;
Commercial Trust Co. vs. White, et al., 99 N. J. Eq., 119;
Coburn vs. Shilling, Admr., 138 Maryland, 177;
In re Bridget Bolin, Admrx., 136 N. Y., 177.

The books contain almost innumerable cases determining the rights of parties under slightly varying circumstances, and, after all, the ultimate question is, — What was the intent of the owner of the passbook in having the change made?

David Bender had been failing in health for some time and had retired from business many years before the change in the passbook was made, and the evidence leaves no room for doubt that this change was made because of his increasing infirmaties, his feebleness and his failing eyesight making it nearly impossible for him to personally transact his business with the trust company.. ■ His request of the company was, in the first instance, to so fix the passbook as- to give his wife a limited right of withdrawal, but the company declining to accede to such request, which would cast on it the burden of keeping account of the extent of withdrawals made by her, it was agreed that e,aeh should be given the right of unlimited withdrawal. This right of withdrawing the funds, as we look at it, simply fixed the rights of the parties as between David Bender and Josephine Bender on the one hand and the trust company on the other, and did not determine the rights of David Bender and Josephine Bender to the fund after its withdrawal. ■ We are convinced from the evidence' that the change in the passbook from “David Bender” to “David Bender or Jospehine Bender,. either may draw”, was made as a matter of convenience only and that the evidence does not show that Jospehine Bender became the owner of the fund even though she had the right of withdrawal and did in fact withdraw the entire fund and re-deposit the same in her own name.

For the reasons given a decree will be entered finding that the defendant as executor is entitled to the fund.

Williams, J, concurs.


text:
    LEEDY v MALCOLM
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10376.
    Decided April 21, 1930
    Raymond E. Hyre, Cleveland, for Leedy.
    J. E. Mathews, for Malcolm.
   SULLIVAN, J.

There is no substantial evidence in the record that the plaintiff ever made claim after executing the written instrument of separation, until about the time of the trial of the cause but it distinctly appears that in a letter to her husband written between 1924 and 1926 she declared that she had no interest in her husband’s property and was making no claim to that effect.

As to the provisions of the written contract, settling the property questions, there can be no question and as to its execution being followed up with separation there can be no question. It is true that claims are made that there were certain periods of cohabitation after the execution of the written instrument, but this evidence in and of itself is not sufficient to show an abrogation of the terms of the written instrument. An intention to .abrogate the agreement, in order for plaintiff to make up her case, must appear in connection with the marital intimacies which it is claimed took place subsequent to the written instrument. The same sort of proof necessary to show to the contract as to property rights and separation is just as necessary to prove the abrogation of the contract as it is to prove the contract of separation itself. There must have been a meeting of the minds upon the question of abrogation and it must appear from the evidence by facts or circumstances that there was an intention of a mutual nature to annul the written agreement. The cancellation of the contract required mutuality of act and conduct just the same as the instrument of writing itself required mutuality or a meeting of the minds, in order to form the contract. We find that there is no proof justifying any such intent in the record and consequently, in our judgment, there is credible evidence in the record to sustain not only the execution of the contract but the .separation which took place immediately after the execution of the instrument.

The plaintiff relies upon Schneider vs B & L. Company, 26 Oh Ap 70, but from an examination of that case we find that the Court of Appeals used as an element of consideration that there was not, in fact, a contract of separation and in that case the parties did not cease living together and after the so-called agreement other children were added to her household. Another distinguishing feature between that case and this, is in the latter there was personal service in the suit in Lake County, Ohio, whereas, in the Schneider case supra, the husband filed a suit for divorce in Reno, Nevada, where a fraudulent decree of divorce was procured and upon constructive, instead of personal service.

In the consideration of this case we must bear in mind always that the claim is not made by the plaintiff against her former-husband, but it is made against the defendants John A. Malcolm and Clara Malcolm, who, as far as the record is concerned, were innocent as far as any contract of separation and any property rights adjudged by the Knapps. The assault is made upon the property which the plaintiff’s former husband sold and which is now owned bv the defendants, and-it is sought, because of the abrogation of the contract, to lower a cloud upon the title of this property held by the defendants, by reason of the claim of the plaintiff that she holds a dower interest therein as the former wife of Frank Knapp.

The question naturally arises, can a woman who is not a wife claim dower in her former husband’s property? When we come to look at the definition of “dower” we find it applies to the right of a wife who survives her husband. The present plaintiff is not the wife of her former husband but the ex-wife and if she were seeking directly to hold her husband, notwithstanding the written agreement for her dower interest in the property, the fact that she claimed no dower in her suit for divorce in Lake County, Ohio, would preclude her claim because she submitted, in that proceeding for divorce., to the Lake County court all her marital rights and made no claim for any alimony and certainly if she could not do that as against her husband she could not as against the defendants who are innocent of the existence or execution of the written agreement in question.

In any event, however, she would have no dower interest except in case of abrogation. Under 7999 and 8000 GC, the legislature fully recognized the right of husband and wife to contract with each other in cases like the one at bar, and in Hoagland vs Hoagland, 113 Oh St 228, a marital contract similar to the one ,at bar is recognized as effective where the contract to separate is actually followed by separation, as it appears in the instant case from the record, even though there is some evidence of occasional intimacy but they are not impregnated with any legal force because there is no connection between the .acts and any intent of a mutual nature to cancel the written agreement, and it is very questionable whether, under our statute, the evidence as to these marital acts is competent because they were privileged communications between husband and wife and not in the presence of other parties.

Upon the question of the necessity of intent to abrogate we cite Dennis v Perkins, 88 Kan. 426, which is ,as follows:

“(1) Reconciliation and the resumption of marital relations do not necessarily avoid a separation agreement previously made by the parties; such effect depending on the question whether the provisions of the contract and the conduct and circumstances show an intention to treat the .agreement as no longer in force.
(2) Such reconciliation and resumption do not warrant the court in deeming such contract avoided any further if at all, than its terms, taken in connection with all the situation and conduct of the parties, indicate their intention to avoid it.”

Also Daniels vs Benedict, 38 C. C. A. 592, 97 Fed. 367 which is:

“It is not subsequent cohabitation alone > which avoids such agreements but the intentional resumption of them and the reconciliation which the resumption of marital relations sometimes evidences. So far as subsequent cohabitation establishes such an intention, and so far only, does it have .the effect of avoiding the contract.”

There is no question but that the trend of the position of the courts at the present time upon the question under discussion here, is that husband and wife have power to contract with each other and fix their own relations in a permanent sense, as is done in Baird vs Connell, 121 Iowa, 278 and many other authorities.

Summarizing from the record, our view is that there was a contract which determined the rights of the Knapps in each other’s property with respect to dower; that the contract of separation was followed up by actual separation and that subsequently no act was committed which was mutual in character that abrogated the agreement and neither is there any evidence in the record of any intent on the part of either one of the Knapps that the written agreement should be cancelled, and this conclusion, so far as the plaintiff is concerned, is sustained by the action of the plaintiff herself in her suit for divorce in 1918 in Lake County, Ohio, wherein she asserted no right contrary to the written agreement and it is necessarily a logical conclusion that if she thought she had any rights of dower or believed that the contract had been abrogated, that she would not liave remained silent and asked for no alimony, but, on the contrary, would have asserted her rights if there had been ,any foundation in her own mind for the claim of dower which she released in the written instrument in question, ,and which by her conduct she sustained and approved throughout her entire subsequent conduct.

With this interpretation of the record in view a court of equity would not be justified in taking from the defendants any of their property purchased from the former husband of the plaintiff, and under the record it seems conclusive that the cloud, by reason of the claim of dower, should be removed under the prayer of the cross-petition.

Thus holding a decree may be entered in favor of the defendants. Order see Journal.

Vickery, PJ, and Levine, J, concur.


author: WASHBURN, J.

text:
    BOZZELLI, et v H H SEFF ADV CO
    Ohio Appeals, 9th Dist, Summit Co
    No 1776.
    Decided April 4, 1930
    Walter S. Hutchison, Akron, for Bozelli, et.
    Benner, Harter & Watters, Akron, for Adv. Co.
   WASHBURN, J.

While said agreements contain no express promise on the part of the defendant to pay plaintiff anything, such promise may be implied from the defendant’s written approval of the agreements, and besides, as to •the first agreement, there was a payment from defendant to plaintiff of $15, ,and as to the second agreement, defendant promised to remove its signs put up under the first agreement and complied with that promise, and hence, under the evidence in this case, there was a consideration for the agreements signed by Lorenzo Bozzelli; but in determining the rights of the parties, we must keep in mind the nature of the agreement and the fact that at the time of the bringing of this .action the defendant company had no sign boards upon said premises.

If, by said contracts, the defendant company was not granted any interest in said real estate, the injunction asked by plaintiffs should be granted and the defendant compmy left to pursue its remedy in damages for a breach of the contracts by Bozzelli.

What relation between the parties was created by said agreements? The fact that, the parties denominated themselves as landlord and tenant .and referred to the contract as a lease, is not determinative of the question. The intent of the parties, as gathered from the contracts and the surrounding circumstances, should be the governing consideration in determining the nature of the relation between them.

It is quite evident that the parties did not intend to create ,an easement in said property, for an easement is a right which one proprietor has to some profit, benefit or lawful use out of, or over, the estate of another proprietor.

A tenancy exists where one has let real estate to another, to hold of him as landlord, but it does not necessarily imply a right to complete and exclusive possession; there may be possession on the part of the landlord for all purposes not inconsistent with the privileges granted to the tenant.

A license is a permission to do some act or series of acts on the land of the licensor without having any permanent interest in it; it may be given in writing or by parol, and whether with or without consideration, it is subject to revocation, but constitutes a protection to the party acting under it unil the revocation takes place.

A license is present where ,an easement or a tenancy is granted,., but if no interest in land is proposed to be created and noth-: ing beyond a mere temporary use of the land is promised, there is nothing but a bare license. It depends, as has been said, upon the intention of the parties.

The agreements in question, which were prepared in printed form by the defendant and consist of promises on the part of the plaintiff and contain no express promise on the part of the defendant, clearly fall within the rule requiring the court to give to them a construction most favorable to the plaintiff; and considering that they relate only to “advertising privileges,” which are in no way defined or described, and that permanent possession clearly was not contemplated, and that if any exclusive possession was contemplated it is not described or defined in any manner- — considering these matters and all the facts and circumstances as shown by the evidence, we are unanimously of the opinion that there was no purpose to give ,an interest in the land and that the defendant has no rights therein that it can enforce by a suit in ejectment or forcible entry and detain-er, and that a court of equity cannot properly decree the specific performance of said agreements.

We think our conclusion is supported by the following authorities:

Wilkins v. Irvine, 33 Oh St 138.

Yeaker v. Trening, 79 Oh St 121.

Fowler v. Delaplain, 79 Oh St 279.

Rodefer v. Railroad, 72 Oh St 272.

City of Hamilton v. Ashbrook, 62 Oh St 511.

Peterson & Wright Co. v. City of Akron, 20 C. C. (N. S.) 375.

1 Thompson on Real Property, Sec. 647.

2 Thompson on Real Property, Sec. 1024.

1929 Supplement of Thompson on Real Property, Sec. 1024.

Lowell v. Strahan, 1 Am. St. Rep., ,at p. 422.

The defendant, having no interest in the land, should be enjoined from entering upon the same or interfering in any manner with anything thereon, and such a decree may be drawn.

Funk, PJ, and P.ardee, J, concur.


author: VICKERY, PJ.

text:
    ALBAUGH v T-N-T SPARK PLUG CO
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10416.
    Decided Feb. 17, 1930
    Harvey E. Elliott, Cleveland, for Albaugh.
    Lex Kintner, Cleveland,' for Spark Plug Co.
   VICKERY, PJ.

From the record, argument of counsel and statements of counsel in open court as well as the briefs filed, we learn that the plaintiff was employed upon a salary, for a fixed period of time, as General Manager of The T-N-T Spark Plug Company, the defendant below; that prior to the making of the contract which gave rise to the present cause of action, the plaintiff in error had filed a voluntary petition in bankruptcy, and among the assets was one share of stock that he held in The T-N-T Spark Plug Company. Subsequent to the filing of the voluntary petition in bankruptcy by the plaintiff in error his relationship as an employee continued after said bankruptcy proceedings, and inasmuch as it was a contract for p.ersonal services, such a contract was not ássignable either by voluntary assignment nor by action of law such as bankruptcy. The right to earn wages and to recover under such contract after the bankruptcy petition was filed, could not be affected by the bankruptcy proceedings, nor was it affected by the proceedings in bankruptcy; that after the petition in bankruptcy had been filed and the plaintiff in error was declared a bankrupt, he was entitled thereafter to his earnings under a contract for personal services, and that was not an asset which would go to the trustees in bankruptcy. Had there been any money that was due him under the contract at the time of the filing of the petition in bankruptcy that, of course, would have been a chose .in .action and would have been transferred to the trustee in bankruptcy when the plaintiff was declared a bankrupt, but there is nothing in this record to show that there was anything due, and it was incumbent upon the defendant below, if it wanted to use that as a defense, to show what, if anything, was due prior to the bankruptcy proceedings, and there is nothing in the evidence to show that anything was due.

It is claimed in this case that the plaintiff had a contract with the defendant below that was coupled with an interest. Well, that does not make it any less a contract for personal services. It simply prevents the other side from discharging him, and possibly that was the reason for the contract that was made after the bankruptcy proceedings, out of which grew this lawsuit. The plaintiff below having a contract for ,at least a year and the defendant wishing to get rid of him, it, subsequent to the bankruptcy proceedings, entered into a written contract with plaintiff by the terms of which it was provided that if and in consideration of the plaintiff below waiving and giving up his right to his contract which lasted over quite a period of time subsequent to the filing of the petition in bankruptcy, the defendant would give him the sum of $1500, $375 of which was payable in cash, the receipt of which is acknowledged in the contract itself; and it agreed to give him a bankable note for $375, which apparently it gave and which apparently was paid when it became due. It likewise agreed that the additional $750 was to be paid out of earnings made by the T-N-T Spark Plug Company out of sales of the spark plugs, and the plaintiff in this action and the plaintiff below was to receive three cents per spark plug until the whole amount of $750 was paid. Of this sum it is admitted that $42.00 was paid, which left a balance of $708 due the plaintiff; and he alleges in his petition that The T-N-T Spark Plug Company had sold more man enough plugs, after the making of the contract and before the bringing of the suit, so that three cents a piece allowed to him had been earned by The T-N-T Spark Plug Company, and to this there does not seem cO oe any denial.

It is admitted in court that The T-N-T Spark Plug Company did sell more than enough spark plugs to nave paid the $708 that was due on the $750 that was still remaining due, but the defense seems to be that in the same contract the plaintiff in error and the plaintiff below .agreed that he would turn over and cause to be transferred to The T-N-T Spark Plug Company one share of stock that he held in said company, which said share of stock had been transferred to the trustees in bankruptcy as a part of the assets of the bankrupt, and the evidence shows that subsequently the share of stock was procured by rne T-N-T Spark Plug Company at a sale by.the trustee in bankruptcy of the assets of the bankrupt, and that at said sale the plaintiff below attempted to buy this stock m so as to turn it over to The T-N-T Spark Plug Company to comply with his contract, but that a Mr. Winkler for the Company bought the stock in at a price of $30.00 and that The T-N-T Spark Plug Company now has the stock and had it yyithin the time prescribed in the contract when it should be turned over to it by the plaintiff and the defendant says that, inasmuch as the plaintiff did not turn the share of stock over to it, this failure under the contract operated as a forfeiture, and that the amount that would otherwise be coming io him would be forfeited to the company by him ,as liquidated damages.

We cannot follow -such a spacious argument. The purpose of this contract with respect to this stock was to get it into the hands of The T-N-T Spark Plug Company and until that was done The T-N-T Spark Plug Company might hold up the payment of the amount -that became due the plaintiff under his contract made subsequent to the filing of the petition in bankruptcy. Now if the company bought this stock m and was compelled to pay something for it and the record in this case shows it was compelled to pay $30.00, it cannot defeat the right of the plaintiff to recover under the contract by itself becoming the owner of this stock so as to prevent the plaintiff from turning it over to it .and thus defeat him on his right to recover under the contract. At best it should be only allowed to counterclaim for the amount that it was compelled to pay for this stock, and it is uncontradicted in this record that that sum was $30.00. That being so, the writer of this 'opinion thinks that the plaintiff would be entitled to recover the difference between $708 and the $30, or $678, and can see no reason from this record and the arguments of counsel why the plaintiff is not entitled to recover that sum.

There is a long written contract and it involves other parties and other things, but this part of the contract is clear and concise, that the plaintiff had the right to work for the defendant for a period of time which he waived for the sum specified in the contract. There is nothing in the record to show that any part of that was earned prior to the proceedings in bankruptcy .and, as already stated, a contract for personal services is not assignable. The plaintiff in this case could not have assigned his right to labor or to work for these people as Manager or in any other position, and if he had an interest in the contract so that the company could not fire him, that would be a basis and serve as a good consideration to support the contract in question. The contract having having been made, — and its terms are clear and explicit, and the amount is undisputed, —there is no reason in the judgment of the writer of this opinion why this should’ not have been recoverable; and the court erred in rendering ,a judgment for the defendant in error, defendant. below.

The writer of this opinion thinks that the judgment of the court should have been for the plaintiff for the sum of $678, the full amount sued for less the $30, which the company had paid for this stock and had it kept out of the bidding and permitted the plaintiff to buy that, stock in, it might not even have been entitled to recover that much, because if it was going to get this stock, it was its duty to keep its hands off and let the plaintiff buy it in so that he could comply with his terms of the contract, and when it “butted in,” it did so at its peril. But the writer of this opinion thinks that the best it can possibly claim is the amount that it paid for this stock, and that amount is $30.00.

The writer of this opinion thinks that there should have been a judgment for the plaintiff in error for the sum of $678 and interest; but the majority of the court agreeing that the judgment should be reversed because it is manifestly against the weight of the evidence, yet think that the cause should be remanded to the trial court for a new trial. The judgment will, therefore, be reversed and cause remanded.

Sullivan and Levine, JJ; concur.


author: CLINE, J.

text:
    HAYSLETT v SHELL PETROLEUM CORP, et
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 11109.
    Decided Oct. 6, 1930
    Niman & Buss, Cleveland, for Hayslett.
    Tolies, Hoggsett & Ginn, Cleveland, for Shell Corp, et.
   CLINE, J.

As to the first two conclusions, the court may well adopt the decision of the common pleas court .in this case, without further comment, for it seems to be settled in this state in the case of Kiley vs Hall, 96 Oh St 374, that

“A lot owner cannot maintain an action to enforce by injunction the observance of restrictions contained in the deed of another lot owner where it does not appear that the latter purchased his lot with notice of a general plan for the improvement of' the lots of the allotment in accordance with the restrictions contained in his deed, or with notice that such restrictions were inserted in his deed for the benefit of the owners of the other lots in the allotment.”

This authority seems to be fortified by the case of Adams v Donavan, 97 Oh St 83-84.

Whatever may have been in the minds of the original grantor and the first grantees, as to a general plan of allotment, and whatever may have been the rights or remedies of subsequent lot owners, against the original grantor for breach of covenant, it seems clear that thgjre was no general plan of allotment in the sense that it affected ,all of the lots, and that no general plan of allotment was set up in the original plat of subdivision.

If the claim of the plaintiff were true that there was ,a general plan of allotment and that the defendant had effective notice of the restrictions because some deeds not in the grantee’s chain of title contained the restrictions, it would compel every purchaser of a lot in any allotment, no matter of how long standing, to search the deeds of each and every other purchaser of such a lot, from the time of the sale of the first lot down to the date of the last purchaser, to determine whether or not there was incorporated in any of the deeds an .agreement by the original owner that all the lots should be sold with restrictions.

It is not customary and in fact it should be well nigh impossible in as populous a county as Cuyahoga, for the purchaser of land to examine the deed to every lot in an allotment in which he desired to purchase land, for the purpose of seeing whether or not there was an agreement between the original grantor and some of his grantees. If that were the law, and if purchasers of lots with no actual notice of restrictions would be bound by such a provision, it would mean that every such purchaser of a lot in any allotment where there is nothing in the deed dr recorded plat to indicate restrictions, would be required to make a search of the county records of every one of the lots in the allotment to ascertain whether or not any restrictions had been made between the grantor and some grantee regarding a lot in which and to which the recent purchaser would have no interest. Such a rulé would well night prevent the operation of real estate allotment agencies in every populous county. It would be a source of jeopardy to every purchaser of a home site. It would require extended examination of hundreds of deeds at a cost prohibitive to the purchaser .and such a rule would be well nigh destructive to real estate development.

We must hold that because there was no general plan which affected all property in the allotment alike, and because there were no restrictions written in the recorded plat and none in the deed to defendant, and because it had no notice either .actual or constructive of any restrictions affecting the Euclid Avenue frontage of the Sheldon Allotment, or of any such plan which may have been in the mind of the original allotment owner, the alleged restrictions have no binding effect on the defendants.

It is further claimed that the restrictions, even if they were valid, are not binding because of the changed character of the district in which the land is located. Because of our conclusions on the other two ciuestions it may not be important to decide this question, but as the General Code requires a decision to be made upon all questions presented, the question of whether or not the character of the neighborhood has changed will be briefly considered.

We do not deem it necessary to make an extended discussion of the facts for the f.rank statement of counsel for plaintiff was that the land in question, because of its inutility for the purpose which the restrictions provide, would probably compel the land to remain idle for a period of eleven years.

That the character of the district is changed and that the land is no longer suitable for single family residences, there can be no doubt. The City of East Cleveland has zoned this land for business and while this cannot affect the restrictions if they exist, yet it is evidence indicating the changed character of the neighborhood.

The plat submitted and the evidence show that many substantial commercial buildings exist on Euclid Avenue both to the east and west of Sheldon Avenue. The» character of the traffic on the street and the character of the business in and about the district leaves no room for doubt that Euclid Avenue at Sheldon Avenue is a business and not a residential district.

Shaw High school was built upon the Sheldon allotment and a part of the allotment at the southerly end was used for road purposes, neither of which are used for “single family residences.” The plaintiff, however, claims that even though the character of the district has been changed and even though the Euclid Avenue frontage were to remain idle for eleven years, yet if there is any value left in the original restrictions the remaining holders of the property in the allotment, the restrictions must be enforced. We do not believe that such is a proper construction of the law nor of the decision cited by diligent counsel for plaintiff. Cooper vs Sanders, 30 O. L. B. 435. In that case, it is true, that the syllabus states that the original restrictions must be of no value before they can be treated as a nullity, but the facts in that case and the reasoning of the court upon which the decision is based clearly show that the restrictions may be treated as a nullity, if they have no. substantial or reasonable value to the property claiming the benefit thereof.

The rule of reason must be read into cases where change of character of neighborhoods is relied upon to invalidate or modify restrictions.

The language of the court in the Cooper case is as follows:

“If there have been changes of an unsubstantial nature that do not destroy the essence and the character of the neighborhood for residential purposes to such a degree that it vitally affects the value of the restrictions, then the change does not reach that point where a court of equity can say that the restrictions are a nullity. There must be clear, convincing .and substantial evidence to change the character of a neighborhood to such an extent that the court can pronounce a judgment saying that the restrictions as to residences have lost their value. There must be a situation actually existing that is contrary to any sound reason for further structures with restrictions of the character stated. It should appear that there is no further reason for contemplating future structures of that character. Slight changes are not sufficient because they do not affect the substantial character of the neighborhood.”

(

The decision of the Court of Appeals of this district in the case of Perley vs Strong, Case No. 1274, which involved property restrictions on Drexel Ave., which case was very carefully argued and attracted much attention of the bar, held that the restrictions insofar as they affected the E. 105th St. section of the Drexel Ave. .allotment, were invalid and the enforcement of the restrictions would be inequitable and unjust “because such enforcement would greatly impair the defendant’s property without rendering a corresponding advantage to the plaintiff’s property.”

We hold that such a changed condition exists in the neighborhood of Sheldon and Euclid Avenue that the restrictions incorcorporated in the original deds, even if they were valid, would not be effective because the changed condition of the neighborhood has substantially destroyed the value of the restrictions.

The appeal will be dismissed and a decree may be entered for defendant. O. S. J.

Vickery, PJ, and Levine, J, concur.


author: PARR, J.

text:
    BENTLEY MOTOR CO v CLARK
    Ohio Appeals, 7th Dist, Mahoning Co
    Decided March 28, 1930
    Wm. E. Pfau, Youngstown, for Motor Co.
    Wm. A. Ambrose, Youngstown, for Clark.
   PARR, J.

It is clear that Clark was afflicted with pulmonary tuberculosis some two or three years prior to the accident and his death. He had abandoned his employment. He was drawing the sick benefits allowed to railway trainmen under such circumstances, in the sum of seventy-five dollars per month. He went away to Arizona and the testimony of the' physician who .attended him there was that after about a year’s treatment his expectancy of life would not be more than one year. It proved, however, that this physican was somewhat at fault in judgment, because Clark lived from two to three years .afterwards. The brother testified that there were some bruises upon Clark’s breast after the accident, and one of the doctors says that when he was called to see him in the August following the accident, that his condition was so serious that he could not “percus” the breast. While it is true that his'brother and his friend testified to his appearance ,as having changed for the better, indicating at least a partial recovery, yet the medical testimony is decidedly quite to the contrary.

Two physicians after his return from Arizona saw him. Both say that it was a case of slow, progressive tuberculosis, so that it is certainly apparent from the testimony in the Record that his expectancv of life could not possibly be for long. The jury found upon the facts in this case that he had been injured, no doubt reaching the conclusion that the injury probably produced a hemorrhage from the lungs. While the finding of the jury was in favor of a recovery, yet having in mind the testimony as to his expectancy of life, it does seem that this verdict is surely excessive. Ten thousand dollars for a man lingering just upon the “border land”. If his personal representative be entitled to recover, it must necessarily have been based upon his expectancy of ’life and how much he would have meant to this minor son.'

The testimony clearly shows that he was afflicted with this f,atal disease prior to the time of the accident, a disease which in such a large percentage of cases proves fatal, that his expectancy of life could not have been of great length. Therefore, the verdict is surely excessive. Having reached that conclusion, and without questioning the finding of the jury as to personal representatative’s right to recover, the verdict is so excessive that it should be divided in half; that is to say, if a remittitur be consented to in the amount of half of this award the judgment will be affirmed for that amount, and if not, it will be reversed upon the ground that it is excessive.

Pollock and Roberts, JJ, concur.


author: ROSS, J.

text:
    KRUG v LINK
    Ohio Appeals, 1st Dist, Hamilton Co
    No 3575.
    Decided March 10, 1930
    Hunt, Bennett & Utter, Cincinnati, for Krug.
    Ragland, Dixon & Murphy, Cincinnati, for Link.
   ROSS, J.

The Ohio Law governing the liability of the lessor to a tenant for defects in the demised premises, has been definitely settled by a number of decisions of the Supreme Court of Ohio.

“ ‘Where a lease is taken of a portion of a builidng where dangerous conditions exist, the lessee will be chargeable with knowledge of defects which are patent, and unless he has fortified himself by an express warranty of the safety of the building, or unless his lessor, with knowledge of some defect which endangers the building ,and which an inspection will not disclose, is guilty of fraud by concealing the defect from him, he will have no remedy against his landlord for a loss sustained in consequence of the unsafe conditions.’ Citing, Thum Bros. v. Rhodes, 12 Colo. App., 245.

“In cases of this character there is no place for the doctrines or phrases of the law of negligence. Negligence is the violation of an obligation to exercise care. That obligation may inhere in the relations into which parties have been brought by contract, but it is not an incident to the making of the contract. What the law exacts in that regard is not care, but honesty.”

C. C. C. & St. L. Ry. Co. v. Ohio Postal Tele. Cable Co., et al., 68 Oh St., 328, at page 336.

“A lessor of a building is not liable to the lessee or others lawfully on the premises, for its conditions, in the absence of actual or constructive concealment, or for any agreement, or for the violation of a .duty imposed by statute.” Shinkle v. Birney, 68 Oh St., 328; Burdick v. Cheadle, 26 Oh St., 393; Shindelbeck v. Moon, 32 Oh St., 267.

Stackhouse v. Close, et al., 83 Oh St., 339, at page 351.

In the case of Marqua v. Martin, 109 Oh St., 56, at page 58, the Supreme Court, quoting from the case of Stackhouse v. Close, et al, supra, said:

“A lessor of. a building out of possession and control is not liable to the tenant or other person rightfully on the premises for their condition, in the absence of deceit or of any agreement or liability created by statute.”

See also: Goddall v. Deters, 121 Oh St., 267. (Ohio Law Bulletin & Rep., January 27, 1930). On page 269, it is stated:

“This court, in the case of Shinkle, Wilson & Keris Co. v. Birney & Seymour, 68 Oh St., 328, 67 N. E., 715, stated the law in the syllabus as follows: ‘The relation of lessor and lessee arises out of contract, and, where there is neither express warranty nor deceit, the latter cannot maintain an action against the former on .account of the condition of the premises hired.’
“This case .has been approved and followed in the cases of Stackhouse v. Close, 83 Oh St., 339, 94 N. E., 746, and Marqua v. Martin, 109 Oh St, 56, 141 N. E., 654.”

It is contended that the 1-4 inch glass constituted a structural defect, and that the landlord was guilty of fraud in renting the premises in this condition, without advising the tenant of the character and strength of the glass.

Even if the glass constituted a structural defect, which we do not hold, there is nothing in the record to show that the landlord knew of this before renting the premises, or that he concealed it from the tenant, or that the tenant inquired as to the thickness ,and strength and character of the glass, or was prevented from testing it, or that the landlord had any means of knowing that the glass would not bear the weight of an adult, or that it would not resist the force of a person of the weight of the wife of the tenant plunged against it. It was apparent to the tenant that the skylights were made of glass. Their purpose as a means of furnishing light to the garage below was also apparent. He was told that he could use the roof as a yard, but he was not told that he could walk upon the glass, or that if his wife fell upon it she would not plunge through.

The fact that the skylights were made of glass, in the absence of direct representation as to the strength and character of the glass, put the tenant on inquiry if he contemplated a use of it other than as a source of light for the garage below. He made no inquiry or test, and the landlord made no representation as to the strength and character of the glass, nor did the landlord conceal anything from the tenant. In short the record wholly fails to show any fraud or deceit upon the part of the lessor upon which liability could be predicated under the authorities noted .above.

The trial court committed no error in instructing a verdict, and the judgment is affirmed.

Cushing, PJ, and Hamilton, J, concur.


text:
    SCHEFF, a Taxpayer, etc v WIEGAND, Mayor, etc
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 11225.
    Decided Sept. 29, 1930
    Farquharson, Curtiss, Gillie, Gustafson & Miller, Cleveland, for Scheff.
    R. G. Curren, Cleveland, for Weigand.
    Squire, Sanders & Dempsey, Cleveland, for C. O. Bartlett & Snow Co, Competitive Bidder.
   VICKERY, PJ.

We have heard this case upon the evidence that was introduced in the court below, the statements, briefs and oral arguments of counsel, and have come to the conclusion that the injunction must be granted, but only upon one ground. Upon the other allegations of the petition except the one that will be hereafter referred to, this Court finds in favor of the defendant, that is, that the bonds were regularly issued under and by virtue of authority of law; that the plans and specifications were sufficient under the statute, and that the specifications furnished were sufficiently broad upon which competitive bids might be based, for it must be remembered this was an incinerator and garbage reduction plant and a certain result was sought to be accomplished; and under the specifications that were prepared by Engineer Fisher of the City of Lakewood the bids might be for various types of incinerator plants, and the building of the plant must, in a measure, be a part of the entire result to be accomplished. and the specifications were sufficiently broad so that various companies or firms engaged in erecting incinerator or garbage reduction plants might become competitors to erect this particular plant. As ,a matter of fact seven or eight competitive bids were submitted for the erection of this plant. So far as the furnishing of plans to the Health Department of the State was concerned, after the bid and plan of the incinerator plant to be furnished was submitted to the State Department of Health and its approval could be made before a contract was entered into, it would comply with the statutes in this respect,— the specifications and the ground plan, the location and so forth being first furnished, —and then after the type of incinerator plant was determined upon, the plans and specifications for that plant as determined upon, could be furnished to the State Department and, of course, that could not be done until after the bid had been tentatively approved.

We understand in this case that the plan submitted by the successful bidder was approved by the State Department of Health and therefore, in so far as all the objections to this plant by the plaintiff are concerned, we simply refuse the relief sought on all grounds except one, and that I am coming to now.

It seems that the specifications and blueprint for ground plan were furnished, which would show the character and location of the plant. That the successful bidder was the lowest bidder there is no question. I think it was lower by some seven thousand dollars than its next nearest bidder.

The difficulty arises in that the bid of the successful bidder was not accepted in the terms that it was made, but verbal agreements were subsequently added to it by the successful bidder.

We .are pointed out a statute, 4331 GC, which provides that after a contract is let if it becomes necessary to make changes, such changes may be made in the contract and deductions or additions in so far as compensation is concerned may be allowed. The trouble with that .argument is that here was a written bid which did not conform to the specifications, and subsequently a verbal modification of the bid would give the successful bidder an opportunity which the others did not have. In other words it was not a competitive bid, because the bid as submitted was not accepted, nor was it acceptable, nor did it conform to the specifications, and the mere fact that the successful bidder afterwards agreed to make certain modifications and changes in order to conform to the specifications would be a radical departure from the bid; and while in this case there might be no harm done, it would be a dengerous precedent to establish, because it might open the door wide to fraud and connivance between the bidder and the authorities, which the statute meant to prohibit.

* A letter from one of the councilmen recommending this bid, which is in the record, shows that another agreement was entered into, other than the one included in the bid itself, and we think this is a dangerous precedent to establish, much as the writer of this opinion knows that the City of Lakewood needs an incinerator plant and is heartily in sympathy with the Council in trying to establish such a plant, for it must be remembered that these changes were not the changes that 4331 GC contemplates, but before the contract was entered into additions ,and subtractions were made which very greatly changed the character of the bid that was submitted and which, if it had been in the contemplation of the party before the bid was made, might have Increased its bid more than the seven thousand dollars so it would not have been the lowest and best bid.

Aside from this there is .another matter and that is ini adding to the specifications in the original bid. One of the specifications provided as to the method of test desired by the City of Lakewood before they accepted this plant, and it outlined what that test must comprise and what the test must be. Now instead of .answering this question or agreeing to it, they say in the bid: “See letter”, which they made a part of their bid and which would naturally be a part of the contract. Now an examination of that letter will show that it very materially departs from the test that the city demanded in its specifications and which undoubtedly the other bidders agreed to. It states an entirely different situation and condition under which the test must be made and under the specifications, if the successful bidder would build this incinerator plant and it did not come up to the test in the specifications, this bidder could point, and rightfully point, to the modification in the letter which accompanied its bid and changed the specifications in that respect. This the successful bidder had no right to do.

Now the matter may seem simple, but it is much graver than that. In this case the successful bidder was to give a bond, I believe, in the amount of its bid, something like $77,000, that the plant would perform what it was sought to have it perform and what the test demanded that it should perform, so that if it did not conform to the test set up in the specifications and a suit was brought upon the bond against the Company and the bondsmen, they could very naturally and would undoubtedly plead that that was not their contract, and refer with much force and effect to the letter accompanying the bid.

Now we think that this is a dangerous precedent to establish and one which would hazard a recbvery upon this bond if the successful bidder should build this incinerator plant and it did not perform as it was designed that it should perform. The method of delivering the refuse is so entirely different than the specifications provide. They might well place $7000 lower on their bid if. as they wanted, the refuse it should be delivered to their furnaces so that they could continuously perform. The incinerator plant contemplates the disposal of 75 tons of refuse per day. Now that necessitates the storing of about three-fourths of that refuse because it is all gathered in an eight hour shift and it is put upon the receiving room floor of the plant on the second floor; and if the specifications as modified by the successful bidder in the letter would be carried into effect, it could demand that the wagons continually stand in line and be driven upon the receiving floor where it could be dumped into the furnace from the trucks and under those circumstances they say that their plant would be a success.

Now we think that this is a grievous error in the matter .and one which might jeopardize the right of Lakewood to recover on the bond if this plant should not be a success, and it is for the reason and only for the reason that the bid did not conform to the specifications because subsequent modification by parol and by letter were made to the bid, and because the bid did not conform to the demand of the specifications with respect to the test to be made, but added something which was a radical departure from the test demanded by the City, that we think that the injunction prayed for by the plaintiff should be granted.

The injunction will be granted and a decree may be drawn along these lines.

Levine and Cline, JJ, concur.


text:
    WILHELM v CLEVELAND (city)
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10804.
    Decided Oct 6, 1930

      Farquharson, Curtis, Gillie, Gustafson & Miller,' Cleveland, for Wilhelm.
    Harold H. Burton, Cleveland, for City.
   CLINE, J.

It is quite apparent from a reading of the record that plaintiff in error did not violate the ordinance. He had parked his car on E. 2nd St., for the purpose of making a delivery of merchandise and was quite within the provisions of the ordinance and he should have been discharged on that ground.

It also appears from the record that the court erroneously dismissed or nolled, over the objection of defendant, a proceeding in which an offense was charged against Wilhelm, which was the same charge upon which he was later tried. The third arrest and trial placed Mr. Wilhelm in jeopardy the second time, which contravenes his rights under the Constitutions of the State and the Nation.

It seems from the whole record that the action against Mr. Wilhelm approached persecution rather than prosecution. It is apparent that when Mr. Wilhelm discovered his car was gone and complained to the policeman, an altercation arose and the patrol wagon was called and Mr. Wilhelm was taken to jail where he remained for several hours. The subsequent proceedings indicated unusual diligence on the part of the prosecuting officials.

Mr. Wilhelm was well within the exercise of his rights for the ordinance recognizes the necessity of merchants and business men making deliveries to their customers and provisions are made in the ordinance for parking cars while this is done. It does not apear that Mr. Wilhelm had left his car on the street for an unreasonable time while he was engaged in delivering to his downtown customers merchandise which they evidently needed.

Merchants should be aided in the delivery of their merchandise, for without this service it would be well nigh impossible to carry on business in this city.

We recognize that traffic has become dense and that strict regulation of traffic is necessary, but that affords no excuse for an officer who becomes angry at an individual, to arrest him and keep him in jail without affording him a reasonable opportunity to reach his .attorney and to secure bon.d.

The subsequent proceedings in police court accentuate the original error for there was a persistent effort to persecute rather than prosecute. The case, in one sense, is of trivial nature because Mr. Wilhelm was fined only the costs, but the principle involved is important. If a citizen is to be deprived of his rights because the fine administered against him is small, then the liberty of ,a person may be destroyed where the punishment is sevére.

Cancerous growths which are small in their beginning, ultimately destory the entire organism and it should be the duty of those in charge of the enforcement of the law, and its construction, to prevent evils whose growth may eventually destroy the constitutional guarantee of the people.

We recognize that the traffic squad has a great burden in directing street traffic in the downtown district, and citizens should aid them in carrying this burden. However, members of the police department, as well as all other officers, are essentially public servants and their paramount aim should be to assist the public rather than oppress any citizen no matter how humble.

Crimes committed against society cannot be effectively curbed by other crimes committed against criminals. It is just as important that a prisoner be properly convicted according to the prescribed forms of law as it is that he be'convicted. An injustice done to a prisoner under the form or sanction of the law creates a poison, the tendency of which is to destory respect of and reverence for the law.

The judgment of the municipal court is reversed and plaintiff in error is discharged.

Vickery, PJ, and Levine, J, concur.


text:
    WALKER v STATE
    Ohio Appeals, 9th Dist, Summit Co
    No 1848.
    Decided Oct 2, 1930
    Robert I. Azar and O. L. Dally, both of Akron, for Walker.
    D. D. Isham, Prosecuting Attorney, and Geo. R. Hargreaves, Asst. Pros. Atty, both of Akron, for State,
   WASHBURN, J.

We find that the admission of this testimony was error. The defendant w,as under arrest and the circumstances and surroundings were not such as naturally or reasonably to call for some action or reply on the part of one in his situation — the better rule being that ordinarily one who is under arrest and so circumstanced that he is not free to act voluntarily, cannot legally be regarded as called upon .to reply to the statements, in his presence, of one person to another touching his alleged guilt, and therefore his silence is not evidence of an admission of the crime charged or even a circumstance of conduct on his part that the jury is entitled to consider in determining his guilt or innocence.

Geiger v. State, 70 Oh St 400.

Under the circumstances shown by the record in this case, said error was clearly not prejudicial, and the defendant was not deprived of any substantial right.

In the first place, the trial judge told the jury that said evidence should be considered with care and caution and with proper consideration of all of the circumstances and conditions then existing and surrounding the defendant, and that if it did not appear that the defendant heard the question and observed the movement of any reply thereto, the evidence should not be considered for any purpose. In the second place, when the shot that killed the policeman was fired, there were three other policemen who were within a few feet of the defendant, and two of them testified to having seen the defendant fire the shot, and they all testified that immediately after the shot was fired the defendant ran a few feet to a position behind' the automobile and fired several shots at the other policemen who were on the other side of the automobile and that the policemen fired three shots at the defendant, two of which took effect.

There was no one else in the vicinity who did any shooting, and it seems to us that there is no possibility of the officers being mistaken. The evidence establishes the guilt of the defendant not only beyond a reasonable doubt, but beyond the possibility of a doubt. Under such circumstances the testimony that was erroneously admitted, to the effect that the defendant said nothing when he was in the presence of the injured policeman, could not have had any influence upon the jury; it was merely cumulative evidence and evidence of very questionable probative value, and we are clearly of the opinion that it did not affect the verdict in this case.

As has been said, the other claims of error have been carefully considered, and what we have said indicates our conclusion upon the question of the weight of the evidence .

In our judgment the defendant had a fair trial, free from any prejudicial error, and we fully concur in the finding by the jury that the defendant was guilty and that he was not 'entitled to a recommendation of mercy. '

Funk, PJ, and Pardee, J, concur.


author: ALLREAD, J.

text:
    TURNER, Attorney General, etc v REPUBLIC CASUALTY CO of PITTSBURGH, PA, et
    Ohio Appeals, 2nd Dist, Franklin Co
    No 1937.
    Decided Sept. 29, 1930
    Gilbert Bettman, Attorney General and Oscar Brown, Special Counsel, Cleveland, for Turner, etc.
    Vorys, Sater, Seymour & Pease, Columbus, for defendant and Matthew H. Taggart, Commissioner of Insurance of the State of Pennsylvania.
    Wilbur E. Benoy. Columbus and Gris-wold, Green, Palmer & Haddon, Cleveland, for defendant A. T. Knudson & Co.
   ALLREAD, J.

We think that the case of Wagner v. Armstrong, 93 Oh St 443 throws light upon the question presented. The cases there involved actions in partition and which had been appealed to the Court of Appeals. The cases found their way to the Supreme Court where it was decided that the actions were appealable, the syllabus being:

“All partition cases were originally cognizable in courts of chancery only and must still be regarded as chancery cases and therefore appealable under such terms and procedure .as may be provided by law.”

It was argued in that case that the fact that a special statutory proceedings in partition cases was provided for, would exclude partition from the category of chancery cases. After' elaborate arguments, it was held that, statutory proceedings for partition simpiy reduced to statutory form what before had pervailed as chancery cases and the cases were therefore appealable whether they were brought under the statutes or involved more elaborate jurisdiction in chancery.

Again, in the case of Johnson v. Deaton, 105 Oh St on page 285, the principal was affirmed and that not only the original order of partition was appealable, but the final order in the case was .also appealable. This operated to overrule the former case of McRoberts v. Lockwood, 49 Oh St 374.

The case of Hunner vs. Pardors 111 Oh St 595 holds that a foreclosing of a mechanic’s lien although provided for by statute, is a chancery case and subject to appeal.

In the case of Manning v. the Village of Lakewood, 94 Oh St, page 85, it was held tha jurisdiction to enjoin the collection of taxes was appealable, although it was then embodied in the statutes. In a subsequent case where the taxes paid were sought to be recovered, it was held in the case of McBride v. University Club, 112 Oh St 69, that such .action was not appealable. There was, therefore, a distinction between an action to enjoin the collection of taxes and an action to recover back taxes which had been legally assessed and had been paid. The latter case did not involve any chancery jurisdiction.

In the case of Clark v. Clark, 110 Oh St 644, an action had been brought in the Court of Common Pleas under statutory proceedings for the sale of an entailed estate. such action was held not to be appeal-able for the reason that the statute created a new action and provided for additional rights. It was therefore substantially a new action and there was no' authority under the common law for the sale of entailed estates.

In the case of In Re Gurnea, 111 Oh St 715, it was held that proceedings in the Probate Court for the settlement of an estate could be appealed from the Probate Court to the Court of Common,Pleas but the case when tried in the Court of Corn-men Pleas could not be appealed to the Court of Appeals. This was upon the theory that a special court, to wit the Probate Court, had been created with jurisdiction in matters of probate.

The cases pending in the probate court might be subject in some respects to the principles of equity but there was no casé in chancery which would justify its appeal from the court of common pleas. A similar case was presented in the case of Sigafoos v. Marker, 37 Appeal, page 1.

Counsel for the defendant filing the motion to dismiss the appeal also cites the case of Chesapeake & Hocking Railroad Company v. Township Trustees, reported in 30 App. page 39, where it was held that:-

“Where' special rights aré conferred by statute, enforceable by special proceedings, no appeal lies from the judgment of the Court of Common Pleas, notwithstanding the fact that neither party was entitled to a trial by jury.”

The case, however, involves the question of a new remedy provided by statute.

In the case of the D. & M. Electric Company v. Commissioners decided by the Supreme Court in 118 Oh St 501, the latter part of the opinion contains the following statement:

“The Court of Appeals of its own motion dismissed the appeal in this case upon the ground that the proceedings did not constitute a chancery case, and since the petition to appropriate institutes a purely statutory proceeding under the oft repeated decisions of this Court the case was not appealable.”

The case cited is another addition to the list of those cases where a special statutory provision originates the case .and adds new rights which the common laws did not give.

In the present case we think there is no change of the legal rights of the parties by this statute. The Attorney-General, representing the Superintendent of Insurance, simply files an action alleging the original trust in the Insurance Commissioner and asking that all parties interested be brought in for the determination of their rights.

A case involving somewhat similar principles came up in State ex rel v. Matthews, 64 Oh St, 419. This case was decided be-before the enactment of 641 GC. It was held that:

“1. It is the official duty of such Superintendent, in the event that such company becomes insolvent, to act and perform his trust, by distributing the fund so deposited with him, pro rat,a among the several policy holders and when their just claims shall all be satisfied, to- pay the balance, if any, to the company or its assignee or their successors.”

The case of Hogan, Attorney-General, v. Empire State Surety Company, 8 Appeal 172, is cited. This case w,as brought into the Court of Appeals on appeal from the judgment of the Court of Common Pleas. The case was treated by all the parties as an apnealable case. No objections were made to the appeal and the case was submitted on appeal and decided. It may be claimed that there is no authority from this case in favor of the appealability of the cause. We can only add that inasmuch as the Court of Appeals had the right to dismiss a non-appealable case, there is some interence that the Court of Appeals must have considered the case appealable. ■

The case of State ex rel Turner, Attorney General v. Union Casualty Company, 8 Appeal 285 is cited. This case was reported on the final decision of the Court but does not purport to report the decision on the preliminary questions. l$e find that in an earlier stage a motion to dismiss the appeal was filed. The motion was overruled by the Court of Appeals and the case was then heard on the merits and judgment was rendered in favor of the creditors and against the State Insurance Commissioner of Pennsylvania. After judgment, the case was taken to the Supreme Court on motion for a writ of certiorari and the motion was overruled. It does not appear that the question of the appeálability of the case was involved in the Supreme Court for the reason that the party who appeared in that court for a motion of certiorari, was the party who prevailed on the motion to dismiss the appeal in the Court of Appeals. The only authority therefore which supports the appealability of the case is the judgment of the Court of Appeals.

This court in passing upon the question of appealability in the Union Casualty Company case, in its decision dated October 11th, 1917 said:

“The action is, therefore, a case in chancery (see 93 Oh St 443). In this case (93 Oh St), it was held that although actions in partition are regulated by statute, yet they are nevertheless to be regarded ,as chancery cases because the jurisdiction originated in chancery.”

These cases establish original jurisdiction of this court and hold that the original rights of the parties were in chancery.

The creditors in this case filed their cross-petitions and sought the allowance of their claims as valid claims ,and an order for the payment thereof by the Superintendent of Insurance_ffom the proceeds in hjs hands. We think that the cross petition of Knudson and Company was a claim in chancery against the Superintendent of Insurance and is subject to appeal.

It is further urged that the right of Knudson and Company to file a motion to dismiss the appeal was waived by the entry and order of this court for partial distribution of the funds. There is no written agreement so far as we have been able to discover binding Knudson to this partial distribution but in the entry itself there is an order that the claims of certain creditors, including Knudson and Company, are set down for hearing.

It is claimed that this entry justifies this Court in holding that Knudson and Company have waived the right to object to the appealability of the casq. They cite, in support of their contention the case of Mason v. Alexander, 44 Oh St 318, Planson, Executor v. Scott, Administrator, 26 App. 122. It is the rule that a party to a case which has been appealed may be silent without waiving his fights to object to the appeal. We think he can not go farther and recognize by any affirmative act the .appeal. We are unable to find, however, that Knudson and Company by any affirmative act waived its right to object to the appeal.

We therefore hold that the motion to dismiss the appeal must be overruled. Motion overruled.

Kunkle, PJ, and Hornbeck, J, concur.


text:
    ZAKRAJSEK v VESEL
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10822.
    Decided Oct. 6, 1930
    F. C. Friend, Cleveland, for Zakrajsek.
    Harry F. Glick, Cleveland, for Vesel.
   CLINE, J.

Plaintiff in error claims that possession taken and rents paid under a defectively executed lease creates only a tenancy from year to year or month to month, dependent upon the terms as to payment of rentals as. stated in Lithograph Bulding Co. vs Watt, 97 Oh St 74. Also relying on Lane vs Greene et al 21 O App Rep 62, plaintiff in error "claims that

“possession under a defective lease providing for rental payable monthly and practical construction of parties held to create tenancy from month to month,” and

that if the lease were defectively executed he would be bound thereby only from month to month.

The supplementary brief submitted by the attorney for Zakrajsek refers to Trustees vs Spencer, 7 Ohio 149 the syllabus of which reads as follows:

“An action of covenant can not be sustained for rent against a lessee in a lease sealed and subscribed only by the lessors, although such lessee has actually entered into possession under the lease.”

The case shows that this was an action upon a lease executed under seal which lease was made pursuant to a special act of legislature. This being the fact the laws now in force would have’ no application to the special conditions arising under the lease or the special statute under which it was enacted.

The question involved was decided in the case of Grant vs Ramsey, 7 Oh St 157, the syllabus of which is as follows:

“2. A parol lease of lands for more than one year, but less than three, will, by the taking possession under it, and the payment of rent according to its terms, be withdrawn wholly from the operation of the statute of frauds. '
3. In such ,a case the tenant cannot by a voluntary abandonment of the premises during the term, terminate his further liability to pay rent, although the landlord may have neglected to execute a written lease according to the agreement of the parties, unless the abandonment appears to have been on .account of such neglect.”

Counsel for plaintiff conceded during the argument that if the plaintiff had taken possession of the premises under the lease, that he would be bound by the lease even though his wife had not signed the instrument.

Inasmuch as the evidence warrants the conclusion that there was a taking of possession under the lease in question the conclusion would follow from the admission of plaintiff that he would be responsible for the rents reserved. We do not think however, that the lease was defectively executed. Since the lessors signed and executed the lease for three years and delivered it into the hands of Zakrajsek and he had entered into possession and paid rentals thereunder, that he would be bound by the terms of the lease and neither his signature nor that of his wife would be required to make the instrument valid.

The lessor only attempted to enforce the lease against Zakrajsek who alone signed it and no .attempt was made to enforce it against the wife of Zakrajsek: Zakrapsek having signed the lease and having taken possession and paid rent under it, judgment of the court below must be affirmed.

Vickery, PJ, and Levine, J, concur.


text:
    VOLLHARDT, et v NORWOOD SASH & DOOR MFG CO
    Ohio. Appeals, 1st Dist, Hamilton Co
    No 3545.
    Decided Feb. 17, 1930
    Jackson A. Sparrow, Cincinnati, and Frank A. Roberts, Steubenville, for Vollhardt, et.
    Malcolm McAvoy and D. R. Tate, both of Cincinnati, for Sash & Door Co.
   ROSS, J.

While the proceeding to enforce the mechanic’s lien is governed by statute, it has been repeatedly held that such cause of a'ction is equitable in its nature.

The allegations of the petition, unquestionably, if proved, would taint the transaction involved with fraud. It is not necessary that the word “fraud” be used in the pleadings, if the allegations state fraud. This being the case, the court considering the application of a remedy in equity, confronted with allegations in the petition amounting to a charge of fraud, should be most liberal in the admission of evidence which would disclose all the incidents pertinent to the entire transaction.

The Vollhardts proved that Mor,an was an agent, and they sought, by introducing evidence of his statements, to substantiate the allegations of the petition. In this attempt, ' it was indicated, they were frustrated by the court, who took the view that such evidence could not be introduced, because it would, vary the terms of a written contract by parol evidence. A proffert was made which shows substantially that such evidence was sought to be introduced.

Counsel for plaintiff in error have quoted from 2 Corpus Juris, 938, and we adopt the latter portion of this quotation as follows, and as being particularly applicable to the facts in this case.'

“Thus, where the agency has been established by independent evidence, the declarations of the agent are competent to show that he acted as agent and not on his individual account, or to show- the nature and extent of his authority, x x ”

It would seem somewhat .difficult to ascertain whether statements were made within the scope of employment, or authorized until the court knew what were the statements to be so tested. The court, by excluding the statements made by the admitted agent of the Company completly destroyed the defense, which may or may not have been a valid defense according as the facts developed authority to make the statements.

We think, therefore, that the exclusion of the evidence was such prejudicial error as will require a reversal of the judgment, and we so hold.

The judgment is reversed, and the cause remanded to the court of common pleas for further proceedings according to law.

Cushing, PJ, and Hamilton, J, concur.


author: JUSTICE, J.

text:
    CLEVELAND (city) v AMATO
    Ohio Appeals; 8th Dist, Cuyahoga Co
    No 10820.
    Decided Oct. 13, 1930
    Harold H. Burton, Director of Law, Cleveland, for city.
    Lombardo & LoPresti, Cleveland, for Amato.
    Judges CROW and JUSTICE (3rd Dist) and MAUCK (5th Dist) sitting
   JUSTICE, J.

It is the contention of counsel for defendant, the plaintiff in error here, that the foregoing facts do not tend to establish any negligence on the part of the defendant and that therefore defedant’s motion for a directed verdict at the close of all the evidence w,as well taken and should have been sustained by the trial court and that its failure to so do constitutes reversible error.

Manifestly, the contention of counsel for defendant is sound and must be upheld by us unless the facts above set forth are such as to permit or require an application of the rule of res ipsa loquitur.

In St. Mary’s Gas Co. vs Brodbeck, 114 Oh St 423, Marshall, C. J., speaking for the court, at page 432, said:

“In order to give rise to the application of the doctrine of res ipsa loquitur, the circumstances must be such that, in the usual course of the relations between the parties, and of the particular business transactions between them when conducted in a prudent manner, the .accident would not have happened and it must further appear that the cause and the means of explaining it are within the more immediate control of the defendant.”

On page 433 the Chief Justice further said:

“It is a rule of evidence which permits or requires the inference of negligence where an accident occurs under circumstances where in the ordinary course of events such accidents do not occur.”

In Glowacki vs Railway & Power Co., 116 Oh St 451, the following pronouncement was made:

“The rule of res ipsa loquitur is not a substantive rule of law. It is rather a rule of evidence which permits the jury, but not the court in a jury trial, to draw an inference of negligence where the instrumentality causing the injury is under the exclusive management .and control of one of the parties and ,an accident occurs under circumstances where in the ordinary course of events it would not occur when ordinary care is observed. It is an evidential inference, not controlling upon the jury, but to be considered by the jury under proper instructions.”

Applying the rule above stated, to the facts in this case, it occurs to us that the proposition advanced by counsel for defendant is not tenable for the reason that an inference of negligénce on the part of defedant is clearly dedircible from said evidentiary fact’s. True, this inference is not conclusive. It is rebuttable but with such an inference before the court and jury it was the duty of the trial court to submit the case to the jury under proper instructions. If the trial court had done otherwise it would have, beyond question, invaded the province of the jury.

Obviously, our conclusion is that the verdict and judgment entered thereon are sustained by some, evidence.

It seems proper to say in passing, especially in view of the record, that counsel for defendant has not invited our attention, either in argument or by brief, to any claim of error except as aforesaid, hence none other than that claim of error has been considered. 11248 GC.

Holding these views it follows that the judgment of the common pleas court should be affirmed.

Crow, J, concurs in judgment. Mauck, J, dissents.